penn state

The family of Joe Paterno is using a decision issued last week in the Commonwealth Court as support for its case fighting the $60 million sanction the NCAA imposed on Penn State University.

The plaintiffs in Paterno v. National Collegiate Athletic Association opened their strongly-worded memorandum opposing the NCAA’s preliminary objections with a two-paragraph quote from Judge Anne E. Covey’s opinion issued last week in Corman v. NCAA, which called into question the validity of the same $60 million penalty at issue in the Paterno suit.

The memo quoted Covey as saying, “Student-athletes, trainers, coaches, administrators and support personnel who had excelled in their jobs through hard work, practice, commitment, teamwork, sportsmanship, excellence and perseverance were told none of that mattered.”

The plaintiffs in the Paterno suit argued that the NCAA’s preliminary objections attempted to relitigate issues previously decided, such as a lack of standing and failure to state claims. The plaintiffs further said that, although they recently brought Penn State into the case as a nominal defendant, they are not seeking relief against the university, and that the university does not have the standing to argue on behalf of the NCAA.

The plaintiffs saved their harshest words for the NCAA, alleging that it is pressuring Penn State to oppose their suit.

“Penn State’s decision to support the NCAA defendants is not surprising, however, for Penn State remains trapped under their thumb,” said Thomas J. Weber of Goldberg Katzman in the memo, which he filed on behalf of the plaintiffs. “The NCAA defendants have taken every opportunity to emphasize that they are still pointing a gun directly in Penn State’s direction, continuing their unlawful conduct by threatening to impose ‘harsher sanctions’ and even the ‘death penalty’ if Penn State does not cooperate.”

On April 11, the NCAA filed an amended memorandum supporting its objections to the suit, maintaining that the plaintiffs lacked standing and that the claims should be dismissed.

In the memo, the NCAA said the Paterno suit amounted to “an assault on Penn State’s interests,” and that the court dismissed a substantial portion of the plaintiffs’ case.

“Plaintiffs have attempted to resuscitate their case by adding Penn State as a ‘nominal’ defendant, but there is nothing ‘nominal’ about Penn State’s role or interest in this case, and this action nonetheless remains fundamentally flawed,” said Thomas W. Scott of Killian & Gephart in the memo, which he filed on behalf of the NCAA.

The filings come as the parties are preparing for oral arguments on the preliminary objections, which are scheduled to take place May 19. Arguments will additionally focus on the possibility of a subpoena of Pepper Hamilton for documents related to the Freeh report, which was created as part of the internal investigation into the university’s response to child sexual abuse at the hands of Jerry Sandusky.

Penn State has until April 27 to file its brief, and none of the parties are allowed to file reply briefs.

The plaintiffs include the family of Paterno, the longtime Penn State head football coach who died in 2012, several former Penn State football players and members of the university board of trustees. The suit was filed in May 2013 over sanctions the NCAA imposed as a result of the Sandusky sex-abuse scandal.

The plaintiffs argue that the NCAA coerced university leaders to agree to a consent decree that included a $60 million penalty payment to the NCAA, improperly used the findings of the Freeh report against Penn State’s football program, and tarnished the reputation of Paterno, his son, Jay Paterno, and others in the Penn State football and university community.

The suit also takes issue with the NCAA and its top officials for the handling of the Sandusky scandal, claiming the trade organization did not have the authority to impose the sanctions it did for matters that were not related to the athletic department, and that it violated its own bylaws and constitution in doing so.

The suit seeks a declaratory judgment that the NCAA’s actions and the consent decree were unfair and unlawful, along with a permanent injunction preventing the NCAA from further enforcing any of the sanctions. It has asked for compensatory and punitive damages as well as their legal costs.

At issue in the Corman case is the same $60 million consent decree. In that case, the NCAA has challenged the constitutionality of the Institution of Higher Education Monetary Penalty Endowment Act, which requires that fines of $10 million or more paid by institutions of higher education pursuant to an agreement with a governing body be deposited into a state Treasury trust fund.

On April 9, a split en banc panel of the Commonwealth Court found that recent filings in the case raised issues of fact over whether the consent decree between Penn State and the NCAA was made in good faith.

In a statement to the press, Donald Remy, the NCAA’s chief legal officer, said the Corman decision was “entirely without basis,” and that the NCAA will continue to defend the consent decree.

Calls to both Scott and Weber were not returned, and a message to the NCAA press office was also not returned Thursday afternoon.

Max Mitchell can be contacted at 215-557-2354 or Follow him on Twitter @MMitchellTLI. •