I just got done reading 40 boring pages of legalese, so let me save you some time and trouble by summing up the lawsuit right here.
The primary plaintiff is Scott Paterno, joined by trustees, faculty, and former football coaches and players. I listed all of the individual names in my earlier post today.
The suit seeks a trial by jury in Centre County. Do you think the NCAA will not do everything it can to get that venue changed if they can’t prevail in the inevitable motions to dismiss?
I’ll skip 27 pages of preliminary and background information about the NCAA, the sanctions, the consent decree, and allegations of wrongdoing by the NCAA, diving right into the subject of “Current and Ongoing Harm.”
Here are the key points:
- All plaintiffs were unlawfully deprived of due process.
- Joe Paterno suffered damage to his good name and reputation, resulting in substantial pecuniary harm to his estate and causing other harm to his family.
- Bill Kenney and JayPa have suffered damage to their reputation and will be unable to secure comparable employment.
- The trustees have been rendered unable to fully carry out their administrative functions because of NCAA’s interference.
- Achievements of former student athletes have been wiped out by the NCAA’s sanctions, which vacated Penn State’s wins during their careers, devaluing their reputations and harming their professional careers.
- The faculty have been harmed because of the hits taken to Penn State’s reputation, in that they have a reduced ability to obtain grants and other funding.
And now, in greater detail, the claims. There are six counts.
Count I: Breach of Contract (Paterno family and Al Clemens)
The NCAA breached its contract by doing the following:
- purporting to exercise jurisdiction over a matter not caused by the football program
- taking actions and imposing sanctions via its Executive Committee, which has power only to address association-wide issues and no power to sanction individual members
- refusing to proceed against Penn State through the traditional enforcement process
- refusing to accept any appeals of the consent decree
- treating the Freeh Report as a “self-report” even though it was never voted on by the full Board of Trustees
- imposing sanctions on the basis of alleged violation of vague, inapplicable principles in the NCAA’s constitution
- imposing sanctions that are available only in cases of “major” violations without explaining why the conduct identified in the consent decree constituted a “major” violation
- imposing the penalty of vacated wins even though no ineligible student athlete was found to have competed during the years affected
- threatening to impose the “death penalty” on Penn State football when it had no authority to do so because Penn State is not and never has been a repeat offender
- failing to conduct its own investigation or explain its own investigative procedures and relying instead on the flawed Freeh report
The suit contends that Rod Erickson “did not, could not, and lacked any authority to, waive Plaintiffs’ rights and entitlement to [due process]”. Remember that Penn State is not a party to this suit. The Plaintiffs for this count are the Paterno family, Joe Paterno, and Al Clemens.
Count II: Breach of Contract (Bill Kenney, JayPa, McCombie, Lubrano, Khoury, Taliaferro, and all the former players)
Pretty much the same allegations as the first count, denying these plaintiffs fairness and claiming substantial economic loss, opportunity loss, reputational damage, emotional distress, and other damages. The NCAA could foresee these damages when it breached the contract.
Count III: Intentional Interference with Contractual Relations (Bill Kenney and JayPa)
The NCAA knew their actions would affect Kenney’s and JayPa’s future employment, business, and economic opportunities, but still took purposeful actions to harm them and interfere with their contractual relations, for which they lacked justification. As a result of the NCAA actions, Kenney and JayPa have been unable to secure comparable employment opportunities in their chosen field.
Count IV: Injurious Falsehood/Commercial Disparagement (Paterno Family)
- NCAA’s consent decree published and relied upon statements that disparaged Joe Paterno and the property of the Estate and Family of Joe Paterno
- Before the NCAA’s unlawful actions, Joe or his estate had a property interest in his name, and there was a valuable commercial market concerning Joe’s commercial property
- The statements in the consent decree regarding Joe’s character and conduct as head coach were false and defamatory, and constituted libel because they imputed dishonest conduct to Joe
- The NCAA widely disseminated these statements
- The NCAA either intended the publication of these statements to cause loss of revenue or they should have figured that would have been the effect
- The value of the Paterno estate suffered pecuniary loss, as did the Paterno family, resulting from NCAA’s conduct
- NCAA either knew their published statements were false or acted in reckless disregard
- NCAA’s conduct was malicious and outrageous and showed a reckless disregard for Joe Paterno’s rights
So, even though the family has pledged that any financial recovery will go to charity, they’re using the financial hit the family took to punish the NCAA for defaming Joe. Good plan!
Count V: Defamation (All Plaintiffs Except the Paterno Family)
- NCAA adopted the baseless statements in the Freeh Report that Paterno deliberately covered up information of child abuse against Sandusky because he was concerned about adverse publicity. NCAA also stated that the BoT had failed in its oversight duties and the entire Penn State community was responsible for creating a culture of “fear and deference”.
- NCAA stated that the issues they sought to address in the consent decree were “about the whole institution” and that “the Freeh Report … revealed [matters] that suggest really inappropriate behavior at every level of the university.”
- These and other statements are unsupported by evidence and made with intentional, reckless, or negligent disregard for their truth.
- The statements were published in the consent decree, which the NCAA disseminated to the entire world.
- The statements were false, defamatory, and irreparably harmed Plaintiffs’ reputations and lowered them in the estimation of the nation.
- The publication of the statements caused actual harm to Plaintiffs because it adversely affected their reputations, caused emotional distress, mental anguish, and humiliation, as well as inflicting financial loss.
Count VI: Civil Conspiracy (All Plaintiffs)
This is what we’ve been accusing the NCAA of doing all along. Should the case ever go to discovery, certain facts regarding NCAA conduct, including its close relationship with the Freeh Group will emerge. The NCAA will do whatever it can to prevent those facts from being unearthed. Some might think this count is far fetched and paranoic. I don’t agree.
- Emmert, Ray, and other NCAA employees conspired to work together with the Freeh firm to impose the unprecedented sanctions
- Emmert, Ray, and other NCAA employees bypassed the NCAA’s rules, deprived the Plaintiffs of their rights, and imposed sanctions on Penn State based on an investigation that did not consider whether Penn State had violated any of the NCAA’s rules.
- Emmert, Ray, and other NCAA employees acted with malice, intending to injure Plaintiffs.
- Emmert, Ray, and other NCAA employees, along with the Freeh firm performed a series of overt acts in furtherance of this conspiracy, to wit:
- the Executive committee and Ray purported to grant Emmert authority to investigate Penn State and impose sanctions, despite knowing that they didn’t have power to do so
- Emmert, Ray, and other NCAA employees worked closely and coordinated with the Freeh firm to help it prepare a report that included false conclusions that had not been reached through adequate investigation
- Emmert advised Rod Erickson that the NCAA would use the Freeh Report as a substitute for its own investigation, violating the NCAA’s own procedure
- “unknown NCAA employees” communicated to PSU counsel that the “death penalty” was on the table despite knowing that no such penalty could have been imposed under the NCAA rules
- Emmert threatened that if Penn State went to the media, the death penalty would be certain, thus extorting silence from Erickson
- Emmert imposed the consent decree on PSU based on the allegations in the Freeh Report, although doing so was impermissible under the NCAA’s own rules
- As a result of this conspiracy, Plaintiffs suffered actual damages
- Defendants’ conduct was malicious and outrageous and showed a reckless disregard for Plaintiff’s rights.
Yeah, you’re right. This count is the crux of the whole thing. When push comes to shove, the NCAA is too big for its britches and it is the big bully, hypocritically imposing penalties on others to avoid having its own skeletons emerge from their dusty closets. That’s why we hope to get this case to discovery. Oh, to prove that Count VI is accurately represented here!
So, what are the Plaintiffs asking? Thanks for asking, Self. Here is the relief requested:
- A declaratory judgment that the actions of the Defendants were unlawful and constitute a violation of the Plaintiffs’ contractual and legal rights.
- A declaratory judgment that the NCAA-imposed consent decree was unauthorized, unlawful, and void.
- Issuance of a permanent injunction preventing the NCAA from further enforcing the consent decree or the sanctions it improperly imposed.
- Compensatory damages for the losses described above.
- Punitive damages for outrageous, reckless, and intentional misconduct.
- Legal fees, etc.
- Anything else the Court can throw at them.
So that’s that for now. What do you think of the chances for getting this thing to trial or a settlement?
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lawrence serewicz says
The report and the lawsuit make an interesting read. I do not think they will get far with it. They may get some sort of out of court settlement for one of the minor issues, but the main issue will remain. I understand why the Paterno family commissioned the report and filed the lawsuit. One could not expect any less from a devoted and loving family. However, only the lawyers get rich from this issue.
What they have to face is that the dead do not have very many legal rights. In particular, neither the dead nor their estate can sue for damages. I appreciate that the case is more complicated and nuanced than I have described, but therein lies the issue.
If JoPa was still alive he would be facing any number of questions, lawsuits, and related issues. In one sense, this means that the issues die with him. Yet, on another level, they will remain open, which is why the family were right to publish the report. They at least offer a historical “yeah, but…” However, neither the Freeh report nor the Sollers report change the underlying issue: Sandusky’s crimes.
If the Freeh report had been for a court, it would not have stood up. However, it is was a private (by that I mean for Penn State) report rather than one done for a court of law. There was no need to show the same level of due process as there would be with a court. Consider how many people are dismissed each year from Penn State. Do you think they get a chance for their “Sollers” report? At best, they may be able to rebut or refute at their hearing, if it gets that far, but for most they have to accept the relative quality and fairness of the dismissal report. (This is NOT a criticism of dismissal process or the investigation process, or the people who manage either).
The reports are the best that people can do at the time to resolve the issue and hope to get the major points mostly right. To put it differently but directly, “if you did nothing wrong, why are you sitting in front of a judge?” Harsh, but roughly true.
Penn State commissioned a report quickly (but clearly perhaps decidedly after Jo Pa died). Would everyone have waited for a nice “balanced” report that may have taken 2 years to write with each point contested, revised, and then agreed? Nope. Penn State did what was best for Penn State. They commissioned a report, they had the report for the purposes for which they needed to act, and acted.
A full and balanced report would have gone much wider and would have had a longer lasting impact on Penn State and the living. In many ways, it was best for Penn State that Joe Pa was dead. I think Joe Pa would have understood the pragmatism that decision required, it is like going for 4 and 2 when you are up by 3 with less than 30 seconds to go but at their 40yd line. You risk the run to eat up the clock, avoid a great punt return, or an interception. Then you rely on your defence.
In that light, Penn State’s strategy is perfect. There has been no wider investigation. The focus has been on a dead man rather than, relatively speaking, the living. As I explained in my blog on this topic, none of this was about a search for the truth but doing what was necessary to save Penn State football and to save Penn State.
The Nittany Turkey says
We welcome all opinions here and although I disagree in part with yours, it is very much appreciated.
It seems that of late, intellectual laziness has overtaken intellectual curiosity. People lack the time, tolerance, and open-mindedness to read and evaluate viewpoints that contrast with their own. Perhaps social media are to blame there, too — the rise of the “troll”, as it were. I wish we all could adopt shades of gray instead of just black and white.
Before I run off at the keyboard here, I want to post a link to the blog post to which you refer in your comment, for those who haven’t read it or who wish to re-read it.
—TNT
Lawrence Serewicz says
Dear TNT,
Thank you for the kind words. I never post with malice because life is too short and my time too precious.
I really feel for the Paterno Family. I also feel for Joe Pa. However, he has to make his own case with God, which is not for us, as mere humans, to judge. I am also a fan of Penn State football given its relatively clean programme for a large school. In comparison to some football related scandals and graduate rates, they are heads and shoulders above others.
They have been damaged by issues off the football field, but it does not lessen the issue for the university or the football programme.
In terms of my other blog posts, I thought I should mention the following.
The first is on the reputation management issue, why Penn State and the NCAA rushed to settlement. Does the NCAA really want an investigation into how it manages “student-athletes” given the financial monopoly it controls? They will go to extreme lengths to protect that monopoly. At the same time, all universities sign up to this “devil’s pact” because of the money and the issue with not being in the NCAA.
http://thoughtmanagement.org/2012/08/17/three-reputation-management-reasons-explain-why-penn-state-and-the-ncaa-settled-so-quickly/
The second post looks at the university more widely and expands on the point with the Penn State and the crisis of the American University.
http://lawrenceserewicz.wordpress.com/2013/02/12/what-is-the-university-in-an-age-of-social-media/
I hope you and your readers find this of interest.
Best,
Lawrence
The Nittany Turkey says
Thanks again for your insights with respect to Penn State and the NCAA. I encourage my readers (both of them, now that Mom is gone) to read and comment on your position. I’ll now proceed to do so myself.
Indeed, the NCAA will go to great lengths to protect its reputation (such as it is). It is tacitly acknowledged among the college sports intelligentsia that evil demons lurk beneath the seemingly impervious exoskeleton of the hypocritical sports monopoly. Occasionally, those nefarious nether world inhabitants pop out their horned crania where they can be seen by even the most naive of observers. If Gallup were to poll the public for an “approval rating” for the NCAA, my guess would be that it would be even worse than George Bush’s at the end of his presidency.
If your premise is correct, Penn State and the NCAA rushed in concert to produce and sign a consent decree in order to protect the NCAA’s reputation. They had Penn State over a barrel, and they had the right to extort Erickson’s signature on a secret, midnight deal without due process or rights of appeal because PSU had signed the “devil’s pact”. My rebuttal to this premise is that at the point the decree was signed, virtually all of Penn State’s dirty laundry was hanging on the line for all to see, whereas the NCAA was launching a pre-emptive strike to ensure that their laundry remained clean and in the closet. (I get carried away with metaphors and cliches sometimes, but I digress.) The question in my mind is: What more did Penn State have to lose with respect to its reputation at this point? Why rush? Why not let due process prevail — why not insist upon due process?
The response to that thus far has been that Penn State was threatened by unknown NCAA operatives with the “death penalty”, and under that threat Rod Erickson immediately became the NCAA’s lap dog, committing the University to draconian punishment. Was the extortive threat a bluff? As it is stated in this lawsuit, the NCAA would have no grounds on which to base the rarely used “death penalty” for Penn State. Perhaps the presumed “death penalty” threat was concocted through the collaborative efforts of Emmert and Erickson and then leaked through unnamed NCAA employees.
This continues to beg the question. What more did Penn State have to lose by insisting on due process, assuming the “death penalty” threat was not credible? Was Penn State, with its reputation already ruined, intent on maintaining the good name of the multi-tentacled monopolistic monster? Or was Erickson just a lousy, gutless negotiator?
In Count VI, the lawsuit alleges that the Freeh group worked closely with the NCAA while producing the report that would ultimately be the basis for the sanctions imposed upon Penn State. In my previous writings (and elsewhere, no doubt), it has been proposed that the Freeh Group essentially produced a made-to-order indictment of the football program and Paterno at the behest of the BoT. If close cooperation with the NCAA did occur as well, the legal term “conspiracy” is appropriate. The NCAA, the Freeh Group, and Penn State’s own Board of Trustees (or some subset thereof) conspired to produce a sham of a report that made Paterno a convenient scapegoat.
But to what end? To protect the NCAA’s flimsy charade of a reputation while Penn State’s was already in the toilet? Something doesn’t make sense here, and that something is why a venerable, proud academic institution would go to such great lengths to fall on its sword for the money grubbing NCAA.
Call this turkey stubborn, but I ain’t buying the notion that Penn State had no choice in the matter.
—TNT
K. John says
Sorry Lawrence, but you are wrong. Penn State’s best course of action would have been to tell the NCAA to go procreate with itself. You are however correct when you say that this was not about the truth. The board doesn’t care about the truth. They don’t care that there is no evidence at all of a cover up. If it was about the truth they would not have hired Freeh. The would have hired an independent investigator. This of course is not what was best for Penn State, it is what was best for the Board of Trustees, or at least a subset of them. Nothing more, nothing less. They messed up on a scale of epic proportions and needed the cover Freeh provided. But make no mistake, any intelligent person would have realized then that Penn State, and by Penn State I mean the real Penn State, the alumni, faculty and students (The Board is not Penn State and never has been but will be soon), would not take such misconduct on the part of the University administration sitting down while they run the school into the ground and devalue all of our degrees.
Joe says
Hmmh. If the NCAA decided to use the Freeh investigation results in lieu of their own investigative resources and was in communication with Louie while the investigation was in process to help formulate their plan for sanctions, I think we should now insist that the NCAA pay at least half of the amount that Freeh charged us!
Seems we saved them a bunch of their own money in performing the investigation and allowed them to announce the sanctions in record time, so I think the BoT should send them a bill for about $4 Million right?
Seems fair to me.
The Nittany Turkey says
Now, you’re cooking with gas!
Seems like the NCAA’s M.O. is to glom onto others’ investigations, like this and the Miami thing. I have to wonder where else they’ve let institutions build the cross on which they would eventually be crucified. Where there’s smoke, there’s fire.
I hope the plaintiffs proceed to trial with Count VI so the world can find out just how crooked the NCAA is.
In the meanwhile, a bill for $4 million seems fair to this turkey, too.
—TNT
Ed Palinurus says
I visited this in light of the NCAA reducing sanctions. The thing you miss is that I highly doubt the Paterno family wants discovery, either. I think it is highly likely that Joe had many mis-steps in this scandal and that will all come out. The suit was a ploy; won’t be surprise if the Paternos declare victory and drop it.
The Nittany Turkey says
Thanks for your interesting perspective. I hadn’t considered this angle heretofore.
I’ll quote you in the current discussion of this development to add some spice there.
—TNT