Corbett’s Weird Lawsuit

Anyone who follows Penn State even casually now knows that Pennsylvania Governor Tom Corbett has filed suit seeking to enjoin the NCAA from imposing the sanctions previously agreed to by Penn State in the aftermath of the Sandusky caper.  You’ve probably read that the NCAA has officially dismissed the lawsuit as frivolous and without merit — naturally, they pulled out “the vicctimmmmmmmmms” trump card, stating that it was an affront to the dignity of those who had already suffered enough.

Penn State itself is not a party to the suit — after all, in conjunction with Mark Emmert’s “death penalty” threats and the subsequent reflexive, “we had no choice” midnight deal, the University agreed not to sue the NCAA — but the Commonwealth of Pennsylvania sure as hell is hit financially by anything as devastating as the NCAA football sanctions, and the Commonwealth is the major source of funding for the operation of the University, so what the hell.

Moreover, as the NCAA’s actions against Penn State were unprecedented and thereby inconsistent with its custom and practice as well as attacking an area outside the NCAA’s purview, its authority needs a good Federal court test. The NCAA has indeed gotten to be too big for its britches, and I am not just saying this because I’m a Penn State homey.

The Suit

Let’s take a look at some of what the document filed today says. First of all, the complaint, verbatim:

The Commonwealth of Pennsylvania (“Commonwealth”), by Governor Thomas W. Corbett, Jr., brings this action as parens patriae for the natural citizens of the Commonwealth for injunctive relief against the National Collegiate Athletic Association (“NCAA”) under Section 16 of the Clayton Act, 15 U.S.C. § 26, for a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.

In the “Nature of Action” section of the document, the Commonwealth asserts seven itemized points. I won’t bore you with the legalese, with the exception of #7, but I can summarize these points, to wit:

1. Penn State’s football program is important economically to the Commonwealth, and is a generator of revenue for the University.
2. NCAA and its member institutions arbitrarily and capriciously abused power in order to cripple Penn State football, which has affected the citizens of the Commonwealth in many ways, particularly economically.
3. NCAA exploited the Sandusky scandal to burnish its own tarnished reputation by landing hard on Penn State, which was forced to sign away procedural rights. “These punishments threaten to have a devastating, long-lasting, and irreparable effect on the Commonwealth, its citizens, and its economy.”
4. NCAA is a trade association of competitors. Antitrust laws permit such associations to impose and enforce rules, but such rules must be enforced in such a way as to prevent their arbitrary application.
5. NCAA’s sanctions against Penn State do not meet these requirements. NCAA did not cite a single NCAA rule that had been broken. Penn State’s conduct did not compromise the NCAA mission of fair competition.
6. The Commonwealth asserts that it “emphatically repudiates” the conduct of those officials who allegedly knew about the [Sandusky scandal] offenses and failed to report them. However, the NCAA should not be punishing Pennsylvanians and compromising worthy programs just to enhance its own reputation and those of the other competing football programs.
7. [quoted verbatim] “The NCAA took the public position that its unique and unprecedented actions were necessary to correct a ‘culture’ at Penn State that improperly exalted the football program to a position of  ‘deference’ and ‘reverence’ within the university. While the role of football and other high-profile sports on college campuses is certainly a legitimate subject for debate, the notion that this phenomenon is in any way unique to Penn State defies credulity. Moreover, given the NCAA’s pivotal role in creating and profiting from the ‘culture’ it now decries, its stated justification for its attack on Penn State and the Commonwealth must be viewed as a pretext for the real motives of the NCAA and its president: the opportunity to gain leverage in the court of public opinion, boost the reputation and power of the NCAA’s president, enhance the competitive position of certain NCAA members, and weaken a fellow competitor.”

The suit goes on to describe the NCAA as a “big business”, with over $846 million revenue in 2010-11, and that because of the NCAA’s role in intercollegiate athletics, operation of a major football program requires a college or university to be an NCAA member, and thus be subject to its tangle of rules.

Moving on to factual background, we see that Penn State’s football program is big business, too, generating hundreds of millions of dollars annually. Penn State football has been one of college football’s most successful programs. In 2010-2011, it was the second most profitable athletic program in the country and the most profitable in the Big Ten. Penn State has achieved this success without compromising the academic performance of its players, boasting one of the highest graduation rates among Division I programs. The football program generated $161.5 million in business volume impact to Pennsylvania in 2009. It has created 2,200 jobs for Pennsylvanians.

The NCAA’s “purported mission” is to regulate competition and ensure that athletes are treated fairly and are viable students, with precedence given to academics over athletics. That doesn’t hold up in practice, as it seems that the primary function of the NCAA has been to maximize revenue generated for member institutions, primarily through football and men’s basketball. It makes big bucks on the annual basketball tournament. Member institutions make big bucks on their college football programs.

The NCAA manual provides for rules and enforcement, but it does not provide for the President, Executive Committee, or the Division I Board of Directors to have any role in investigating potential rules infractions or issuing sanctions. The Infractions Committee is the only entity entitled to administer the NCAA enforcement program. The enforcement provisions are there to protect student-athletes.  No action may be brought against member institutions without going through the Infractions Committee. In fact, the President, Board of Directors, and Executive Committee are explicitly barred from participating in enforcement proceedings and they are not permitted to review sanctions by the Infractions Committee. There is a hearing procedure which gives a member institution the right to appear and present evidence, and appeal any overreaching sanctions.

Mark Emmert, President of the NCAA, is paid $1.6 million per year, 40 percent more than his predecessor.  Emmert assumed the presidency when NCAA was being criticized regularly for its inconsistent punishments and ineffectual rules enforcement. Emmert felt that tightening up the punishment and enforcement mechanism was his mandate, and the Sandusky affair provided him with an opportunity to use the high-profile case as a publicity vehicle to enhance his reputation as the discipline god of the NCAA. The suit asserts that he put his own needs and wants ahead of the welfare of the citizens of Pennsylvania.

After the Freeh Report was completed, Emmert and the NCAA pounced on Penn State even though the Freeh Report did not find even a single violation of NCAA rules. The NCAA, for its own aggrandizement, was kicking Penn State when it was down. This was done outside of the NCAA’s own procedural rules, reading between the lines of the Freeh Report.

Given that Penn State did not engage in any conduct expressly prohibited by any NCAA rule, but was suspected only of violating vague principles of “institutional control” and “individual integrity, a finding that Penn State violated NCAA rules would not be a certainty. In fact, it would require the Committee on Infractions to take the unprecedented step of sanctioning a member institution solely for violating these vague principles, without any accompanying concrete infraction.

To circumvent NCAA rules, Emmert & Co. used the sleazy alternative of extortion, threatening that if Penn State did not waive its right to due process and accept the draconian sanctions, the NCAA would impose the “death penalty” for four years, with the further threat that there would be no deal if Penn State President Rod Erickson leaked any news of the compromise, or even publicly used the term “negotiations.”

The suit goes on with a description of the sanctions and mentions other schools whose serious transgressions were overlooked or not punished by the NCAA. It accuses the NCAA and the competing colleges and universities it represents of cynically and hypocritically exploiting the tragedy of the “Sandusky Offenses” as a “blank check.” The NCAA exceeded its own authority to impose unprecedented punishments.

The Crux

The actions by the NCAA, including the “death penalty” threat to force Penn State to accept the sanctions, constituted concerted action within the meaning of Section 1 of the Sherman Act, to wit, that the law prohibits such an organization from imposing and arbitrarily enforcing rules that bear no reasonable relationship to the need for self-regulation, for the purpose of denying the benefits of participation to a single competitor and thereby lessening competition.

The suit asks for a permanent injunction to prevent the NCAA from imposing the sanctions, asks that the Court find the sanctions in violation of Section 1 of the Sherman Act, and asks that the Commonwealth be awarded costs, including attorney fees.

Discussion

Mouths and computers are flapping far and wide on this one, which broke on New Year’s Eve first by Sports Illustrated and then immediately thereafter by ESPN, the latter streaming it across the bottom of TV screens during New Year’s Eve Bowl coverage.

Much of what I’ve been hearing and reading has applauded Corbett for his ballsy move. Some ascribe a political motive, as Corbett looks forward to being re-elected — or not. A few have been absolutely contemptible, as usual, citing “the victimmmmmmmmmmmms”, despicably used by all parties and their observers to justify whatever they think they want to justify: pro, con, or in-between.

The worst I’ve seen was written by Penn State hater Christine Brennan of USA TODAY Sports. She asserts that Corbett should have let sleeping dogs lie. She asks, “Has no one in Pennsylvania learned anything over the past 14 months, since the news of the Sandusky horrors broke?”

Sensationalist trash! Citing Corbett and other state leaders’ “stunning obsession with Penn State football”, Brennan declared it non-coincidental that the suit was filed on January 2, because Corbett didn’t want to detract from the team’s momentum. Do whut, Juanita? The team hasn’t played since November, thanks to the NCAA sanctions.

Brennan poses some legitimate criticisms regarding the sloth with which Corbett and his prosecutorial team approached the Sandusky matter while it was under investigation. The new Pennsylvania Attorney General made a campaign pledge to investigate the investigators. She takes office on January 15. Stay tuned for more Pennsylvania politics at its finest.

So, what is Corbett aiming to accomplish? Is he out to save Penn State’s ass? His own? The collective ass of the people of Pennsylvania?

His own, no doubt. After all, he did a 180 degree turn from his original position on the matter. Last summer, Corbett in his role as trustee accepted the sanctions and embraced them as part of the university’s healing effort. That was a popular sentiment at the time, but sentiments change. Now that emotions have abated while logic and reason are on the rise, it doesn’t seem like such a good position for the Gov to stand behind anymore.

Regardless of his motivation, however, it is long since time that someone damned the torpedoes and went for it. This turkey has believed all along that the NCAA overstepped its bounds big time — because it could. Someone — namely Corbett — finally has come forward with the brass balls necessary to contest the self-perceived absolute, godlike authority of the NCAA over colleges and universities. Hallelujah!

There will always be snotty reprisals from two-bit hacks like Brennan, who take cheap shots to try to make a name for themselves. Fuck ’em! They have no dog in the fight and furthermore, they always can pull the cowardly ploy of hiding behind “the victimmmmmmmmmms”.

If it were just yellow journalists who were throwing up the smokescreen, we could ignore it and move on. However, we can’t ignore it when the NCAA does it, which is exactly where the NCAA response went. Shame on them, once again!

In a statement issued after Corbett’s announcement, Donald M. Remy, NCAA executive vice president and general counsel, said the governor was belatedly interceding in a matter that was well on its way to being resolved.

“We are disappointed by the governor’s action today,” Remy said. “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. Today’s announcement by the governor is a setback to the university’s efforts.”

This has nothing to do with supporting those victims, who have been used as an immoral smokescreen by way the hell too many opportunists for way the hell too long. Let them be! Sandusky has been tried and convicted; meanwhile, civil suits and settlements are being worked out between the University and the victims and their families. That is a completely separate matter. Pure and simple, the NCAA is requiring that Penn State, the Penn State extended family, and the citizens of the Commonwealth pay the price for Sandusky’s sins and those of his facilitators (if, in fact, it can be shown that anyone employed by Penn State actually did have knowledge of his nefarious activities, which is still in doubt). If you’ve been reading financial news of late, this obliquely misdirected penalization is similar to punishing HSBC, its depositors, and its shareholders for the action of a few of its executives. If men create crimes, punish the men, not their institution. Collateral damage can be nasty. Innocents in large numbers have been harmed by the sanctions against Penn State and the fines levied against HSBC. Lock up Sandusky, Schultz, Curley, and Spanier, if they’re found guilty, but don’t fuck with the football program!

The suit makes a reasonable point about the apparent aim of Emmert’s heavy-handed and possibly illegal sanctions being twofold: to pump up the NCAA and his own image, and to render Penn State non-competitive in football. Okay, so the latter is a bit of a stretch — although the pro-Penn State paranoiacs seem to think that Penn State has always appeared as a high-profile target on everyone’s radar screen — but this component is nevertheless crucial to the anti-trust suit, as it must be demonstrated that competition was impaired by the NCAA actions.

Let me give you my thoughts about the timing of the suit, which was brought into question by the eminent Ms. Brennan. It would have been stupid to file it earlier, without an entire football season in the proverbial can, because it would have been difficult to assess and prove the real damages caused by the sanctions. Now, the costs can be reasonably approximated. We now know how attendance declined from the prior year. We now know how much money was lost in missed bowl revenue. We now know how many players left for competing schools because the NCAA waxed the skids for them. We now know how shopkeepers’ revenues were affected, and so forth.  Consequently, we can now  prove the deleterious effects of the NCAA sanctions. To have filed a suit without being able to document these effects in black and white would have been foolhardy.

Thus, letting one full season play out under the draconian sanctions was necessary to get all the ducks in a row. Now, we must hope that the Commonwealth’s legal team is up to the task and is not firing blanks.

Conclusion

For whatever reason, Governor Corbett well serves the people of the Commonwealth of Pennsylvania and their state university by filing this suit. It is despicable that the NCAA continues to play dirty, dragging out the victims to bolster its case in the court of public opinion at the slightest mention of its questionable procedures or the sanctions themselves. It is this turkey’s hope that a fair-minded and intelligent court of law will see through this smokescreen to the true heart of the matter: that the NCAA’s boundless and arbitrarily wielded power must be curtailed and that Penn State football not be made to act as the whipping boy to serve Mark Emmert’s personal vindication and aggrandizement.

Although the NCAA has implemented new rules, what good are rules if the President and the Executive Committee can ignore them, to the detriment of fairness to member institutions? On a different scale, the United States of America’s membership in the United Nations offers a parallel. It seems that much of the purpose of the UN these days is to throttle the US and strengthen the Third World. That corrupt organization of nations has long outlived its usefulness, and except for some humanitarian programs, is largely irrelevant today. A similar fate for the NCAA might well be in the offing, inspiring this turkey hopes that Corbett’s anti-trust suit will give it a firm push in that direction.