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Sports & Fitness // Hot Air
Steve Murray

Case Against NCAA Has A Chance

The memory of Joe Paterno will live on during years of litigation | AP photo

The latest battle in Joe Paterno v. the NCAA was launched with last week’s filing of the long-anticipated lawsuit against the beleaguered collegiate enforcement agency.

While the suit repeats many of the arguments raised in the wildly self-serving The Critique of the Freeh Report: The Rush to Injustice Regarding Joe Paterno, the lawsuit could create serious problems for the NCAA. That is, if the plaintiffs can prove they have standing to bring the tort case against the NCAA.

The suit claims the plaintiffs – which includes the Paterno family, the estate of Joe Paterno, and various faculty, board of trustees members and former football players – were damaged by the actions of the NCAA. It also claims the NCAA violated its own investigation and enforcement rules, and even broke the law.

Proving damages against the plaintiffs will be difficult. To do so, lawyers will have to argue the consent decree – which is at the center of the suit and was signed by the NCAA and Penn State president Rodney Erickson – negatively affected faculty members and former players whose identities would likely be unknown to the majority of community members.

That “defendants broadly criticized and disparaged the entire Penn State community, falsely, unfairly and irresponsibly accusing plaintiffs of enabling and directly causing reprehensible criminal conduct” is not likely to fly with the trial judge. Most of the plaintiffs likely will be dismissed. The Paternos, however, have standing.

The estate of Joe Paterno is worth a considerable sum, and anything that improperly affects that value as a result of the investigation or the consent decree could lead to the defendants being found liable for damages.

The suit names the NCAA, NCAA president Mark Emmert and Ray Edward, the former chairman of the NCAA executive committee. A ruling in favor of the plaintiffs would not only cost the NCAA millions, but would further erode its authority over member institutions.

This is the same threat that was introduced by the “Ed O’Bannon lawsuit,” which argues the NCAA lacks the legal authority to hold a player’s image and likeness for perpetuity.

The Paterno suit says the NCAA not only over-stepped its authority by imposing a fine on the university and removing wins from Joe Paterno’s record, but that the investigation and decisions violated the organization’s own rules. It’s a good argument.

Facing immense pressure, the NCAA moved against Penn State with unprecedented speed and fervor that had even supporters questioning the propriety of the actions. The Paterno suit makes it clear that, “The NCAA has no authority to investigate or impose sanctions on member institutions for criminal matters unrelated to athletic competition at the collegiate level.” This is an argument the plaintiffs could win.

The suit quotes Emmert saying ” … (a)s a criminal investigation, it was none of (the NCAA’s) business.”

In any given year, collegiate coaches, administrators and players run afoul of civilian law. Yet, Penn State was the first institution to have been penalized for its legal issues. This is key for the plaintiffs.

“Before this matter involving Penn State, the NCAA had never before interpreted its rules to permit intervention in criminal matters unrelated to athletic competition,” reads the suit.

At its heart, the suit aims to clear Joe Paterno’s name while punishing and embarrassing the NCAA. The first mission may be impossible. Damage, whether self-inflicted or deserved, has been done. The latter issue may not be very difficult.

Whatever credibility the NCAA may have had was washed away when the organization willfully violated its own rules in its investigation into impermissible benefits at the University of Miami.

The Paternos’ representatives will hammer this fact in an effort to destroy the NCAA’s credibility. It will work. The organization that ruled a West Coast Conference golfer committed a secondary rules violation by washing her car with a university garden hose has no credibility.

The plaintiffs may win this case. But if the Paterno family thinks a victory will rescue Joe Paterno’s legacy, they are sadly mistaken.

The suit will drag on for years before any decision is rendered.

The O’Bannon case is now in its fourth year and throughout the Paterno suit every mention of the former coach will be referenced to Jerry Sandusky, the former Penn State assistant football coach who was sentenced to 30 to 60 years in prison for the sexual assault of 10 children.

That the suit asks for compensatory and punitive damages also makes the entire process look like a money grab. It’s hard to take the moral high ground from atop a pile of cash.

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