Analysis: Pennsylvania v. The NCAA

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Pennsylvania Gov. Tom Corbett is suing the NCAA over the sanctions it imposed on Penn State after the Jerry Sandusky case.  Does the suit have merit?
Pennsylvania Governor Tom Corbett is suing the NCAA over the sanctions it imposed on Penn State after the Jerry Sandusky case. (AP)

Pennsylvania Governor Tom Corbett announced Wednesday that he is filing a lawsuit challenging the sanctions imposed by the NCAA on Penn State University. The NCAA's actions followed the conviction last June of former Penn State assistant football coach Jerry Sandusky on 45 counts of sexual assault. Those sanctions include $60 million in fines, a four-year bowl game ban, a loss of football scholarships and other penalties.

Michael McCann, who directs the Sports Law Institute at Vermont Law School and covers legal issues for Sports Illustrated, joined Bill to discuss the suit.

BL: Governor Corbett's suit contends that the NCAA has overstepped its authority. What are the particulars of that charge?

MM: The argument is basically to say that the NCAA and its member schools have conspired in an anti-competitive way to hurt Penn State, outside the boundaries of NCAA jurisdiction. Specifically the argument is to say, look, the NCAA can regulate athletic programs, it can sanction schools, but it has to be fundamentally about sports.  [With] the Jerry Sandusky matter, one could argue it’s outside the scope of sports, and as a result, it shouldn't fall within the purview of the NCAA, and that the NCAA is taking advantage, so the argument goes, of the scandal to punish Penn State in a way that’s inappropriate and excessive.

BL: Penn State agreed very quickly to the sanctions and fines imposed by the NCAA. Is that likely to have an impact on the progress of Corbett's suit?

MM: It is, because the NCAA can readily say Penn State agreed to a settlement agreement – it was called a consent decree – in which Penn State gave up the right to challenge this penalty. That means that Penn State can’t file a lawsuit against the NCAA over the penalty. They contractually agreed to it.  And more than that, the only relevant parties, in the NCAA’s view, are the NCAA and Penn State, not the Commonwealth of Pennsylvania.  So what Pennsylvania’s going to have to show is to say, “Yeah, we’re not Penn State, but we fund Penn State. We give them more than $200 million a year in tax dollars. We have a sufficient nexus to Penn State to file this claim.”

BL: The university itself is not involved, supposedly, in this lawsuit. But if Corbett is successful, wouldn't Penn State be the major beneficiary of his efforts?

MM: Absolutely. Penn State would be, if not the major beneficiary, maybe the only beneficiary in one regard, in the sense that the sanctions against Penn State’s football program would be lifted. The penalty that Penn State is obligated to pay [is] $60 million, of which I believe it’s spent about $12 million so far. That would be off the books.  It is interesting that the plaintiff is not the technical beneficiary of the claim.

BL: Michael, you have written that this lawsuit may "set the table" for "a judicial review of the NCAA's broad power to punish schools as it sees fit." Will this suit, in conjunction with various other challenges to the NCAA's authority, including the ongoing O'Bannon vs. NCAA suit, change how that body operates?

MM: Well, many, as you know, Bill, have clamored for change in the NCAA for years. The argument is that the NCAA has overreached, it's procedurally unfair, and as a result, there has to be some type of change. It doesn't appear that the NCAA internally is reforming in a way that’s consistent with some of the criticisms of it.  And maybe this lawsuit, if it can get past the issue of standing, which I think is a real serious problem for it, but if it can, it could be very interesting to see how the NCAA explains how it conducts its reviews.

This segment aired on January 5, 2013.


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