First, the agreement between Penn State and the NCAA, which imposed sanctions upon the university and its football program in exchange for the imposition of the so-called “death penalty” being eliminated. Those sanctions included a $60 million fine to be paid to an endowment to prevent child abuse and molestation, a four year football post-season ban, a crippling reduction of football scholarships, appointing an independent integrity monitor, essentially free release of every student athlete tied to Penn State’s football program and the vacation of all football wins that took place between 1998 and 2011. Also, while not technically a “sanction,” but part of the agreement nonetheless, Penn State was forced to accept these penalties as final, i.e. Penn State could not appeal anything about this agreement. When the details of this agreement became known, it became widely apparent that Penn State did not really have a choice in making this agreement: either accept the severity of the sanctions or do not have a football program for four years.
Second, and more controversial, Pennsylvania’s Complaint alleges that the NCAA’s collective actions in this matter is to be considered an agreement. The NCAA, while nominally an over-seeing body, truly derives its power from being an assembly of its member institutions. It is argued that, either by extension or even directly, the member institutions made an “agreement” amongst themselves to levy stiff penalties. The purpose of this alleged agreement was to weaken Penn State while simultaneously increasing their own credibility, strength, etc. It is further alleged that, in considering the severity of the sanctions, such a severe affront to Penn State, and the university’s football program specifically, necessarily has negative ramifications on the entire Commonwealth of Pennsylvania. The most apparent argument on this end is (1) that the huge fine will be paid by Pennsylvania tax payers and (2) that the local economy will suffer because of the mistakes of the few entrusted with running the university.
Unreasonable Restraint on Competition
To allege that the sanctions negatively affect Penn State in the market for postsecondary education, Corbett asserts that people will choose not to attend Penn State, in favor of other colleges or university, because of the sanctions levied upon it by the NCAA. Let that sink in and consider it for a minute. Pennsylvania argues that because Penn State’s football program has to endure crippling sanctions related to its football program for the foreseeable future, people will chose other institutions for their higher education. It is not clear that a person deciding which college to attend would be affected by the stiff penalties more than that same person would be affected by revelations of a patterned series of on-campus child molestations—that were (at least in public opinion) covered up by the leadership of the University’s administration.
The other two markets named in the complaint, for Divisions I football players and for football related apparel, are more straightforward. Essentially this comes down to whether or not Pennsylvania can prove that the sanctions are unreasonable. In answering this question, Pennsylvania alleges that the sanctions are not related to the NCAA’s mission or stated purposes. Furthermore, the supposed non-action of the NCAA in what is named as analogous situations is also cited, as a bar of what is reasonable. The following incidents are specifically cited as analogous, and, thus, NCAA inaction therein makes its course of action with relation to Penn State unreasonable: in 2003 a Baylor University men’s basketball player murdered another, and the incident was attempted to be covered up by the Coach; the 2010 murder of a University of Virginia female lacrosse player by a member of the men’s team; Montana University’s football team perpetrating a series of rapes that was not investigated or responded to by the university; and the University of North Carolina undergoing a university-wide cheating and fraud scandal. The inaction of the NCAA in these incidents, it is argued, means that action in the Penn State case is unreasonable. It would be an utterly insensitive exercise in futility to compare tragedies and other moral failings and being “better” or “worse” than others. However, a colorable argument can safely be made that simply because the NCAA did not act in the past does not mean that inaction in the past was “reasonable” and their action towards Penn State is “unreasonable.” If two wrongs don’t make a right, neither do the four cited by Pennsylvania in its complaint against the NCAA. Thus, it will likely be argued that past NCAA conduct is not the measure of reasonableness, due to the severity of the conduct alleged to have been perpetrated by the University’s administration.
Affecting Interstate Commerce
The second general type of transaction, one the contours of which are rather mercurial, are those that take place in and around Happy Valley as a result of the football program. The collateral damage to the local hotels, taverns, etc., is argued to be unrelated to any of the errors that transpired at Penn State. Moreover, all such errors are beyond the NCAA’s purview and such actions would be unfair to those local proprietors. The reason why these transactions are to be considered interstate even though they would wholly take place in central Pennsylvania, and thus relevant to this anti-trust lawsuit, is that many people can travel from outside Pennsylvania, from all over the country, to consume Penn State football on Saturday.
Many opinions have been formed as to the appropriate nature of these sentiments (whether they miss the point of the sanctions entirely, whether they would have been exacerbated by the imposition of the so-called “death penalty” rather than the severe sanctions at issue, etc.). How direct of a connection there is between football, the molestation of children by a former defensive coordinator and the sanctions imposed are at the heart of the legal elements of this lawsuit—in addition to the popular discourse about this whole issue.
What This Means for Penn State Footbal & the NCAA
To be clear, this lawsuit pits the NCAA’s waning reputation due to inaction and inconsistency against what Pennsylvania argues is essentially a matter for the criminal authorities and individuals to vindicate their rights in the civil courts. In doing so Pennsylvania is basically arguing that the NCAA (and the member institution) collusively exploited the Sandusky abuse scandal for its (and their) own gain.
The lawsuit seeks a permanent injunction against the NCAA, which would prevent the enforcement of the sanctions. The NCAA has 20 days from the day it was served with the papers to respond to the complaint, by filing either an answer or a pre-answer motion to dismiss. Will the lawsuit to succeed? And, thus, will the sanctions to stand? Those questions are likely to be answered by the fate of a motion to dismiss the NCAA is all but certain to file in this case. Some of the legal arguments the NCAA will make in that motion have been briefly alluded to in this article and more extensively reviewed elsewhere.
Regardless of how the motion turns out, this case will have ramifications beyond that of Penn State’s football program. As one leading Sports-Law scholar, Michael McCann, wrote “this is poised to become a landmark case in NCAA legal history.” The very authority of the NCAA to rule on any matter that does not have a concrete connection to athletic competitions is at stake. Should the NCAA’s sanctions on Penn State be found to violatively collusive, i.e. should Pennsylvania win this case, everything from the Bowl Championship Series to eligibility rules would be up for court challenge.
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