NCAA Takes Umbrage at Paterno Suit

No surprise here.

I've sentenced programs younger than you to the gas chamber.
Didn't want to do it. I felt I owed it to them.
How about a Fresca?

The NCAA seeks to dismiss the lawsuit filed by the Paterno Estate, and a handful of trustees, faculty members, former playrs and former coaches.  The NCAA calls the suit "misdirected."

The filing in Centre County court said the suit contains "sundry misdirected complaints" and argued that the plaintiffs don't have standing to challenge the consent agreement between the NCAA and Penn State over the child molestation scandal involving ex-assistant coach Jerry Sandusky.

"Plaintiffs resort to tortured interpretations of the NCAA bylaws and the case law in an effort to obscure two inescapable facts: they are the wrong plaintiffs and they have sued the wrong defendants," the NCAA wrote.

"Plaintiffs are obviously deeply disappointed with the consent decree and its effect on the legendary football program that they love," the NCAA wrote. "But plaintiffs cannot cobble together a sustainable lawsuit from their sundry misdirected complaints, however sincere their disagreement with the agreed resolution of the Jerry Sandusky matter."

If the lawsuit succeeds, the NCAA said, it would make it impossible for the organization to ever enter into a consensual resolution of a rules infractions matter, even if the university and the NCAA agreed on it.

Where do we even begin?

In saying that the plaintiffs are disappointed by the effect the consent decree has had on the football program, aren't they in essence admitting that the consent decree has had an adverse effect?  Wouldn't that effect harm former players, current faculty, and ex-coaches?  How does it not affect the estate and reputation of Joe Paterno?

And they are worried that it would make it impossible for the NCAA to enter into consent decrees in the future?  Is that a bad thing?  This Consent Decree did not deal with a rules infraction matter, so how would that impact future consent decrees that actually DO deal with infractions?

Let's examine what a CONSENT DECREE is?

According to Wikipedia: 

A consent decree (also referred to as a consent order or stipulated judgment or agreed judgment) is a final, binding judicial decree or judgment memorializing a voluntary agreement between parties to a suit in return for withdrawal of a criminal charge or an end to a civil litigation. In a typical consent decree, the defendant has already ceased or agrees to cease the conduct alleged by the plaintiff to be illegal and consents to a court injunction barring the conduct in the future.  Consent decrees are used most commonly in criminal law and family law. They are frequently used by the U.S. Securities and Exchange Commission. They are sometimes used in antitrust law and labor law.

So I am a little confused here.  No criminal charges were withdrawn, and no civil suits against Penn State were ended (see red text above.)  Even if we interpret criminal activity to be NCAA infractions, we still don't have a case here, since Penn State did not violate any NCAA rule.  Apparently this interpretation of a "consent decree" has been construed above and beyond a normal legal definition to suit the purposes of the NCAA.

Let's be perfectly honest here.  The NCAA basically had no jurisdiction in this matter, created a punishment to which Penn State agreed (at the time based on mis-information in the form of public opinion and the Freeh Report), and now relies soley on this consent decree document to justify the continued punishment.

The courts must allow outside parties to contest this, because outside parties are affected by the outcome of this document.

For instance, if you sign a "consent decree" with your neighbor to absolve him of killing your spouse (hiring a hit man so to speak) and both parties agree, that does not make it legal.  The NCAA had no authority to absolve Penn State of any litigation or criminal conduct, and they certainly weren't absolving them of any infractions--in fact they were punishing them when no infraction had occurred.

Can the governor of a state enter into a consent decree with the president and agree to fine the state's taxpayers for a potential violation of a federal statute?

I'm sorry, but the fact that Penn State--and in particular a few members of the administration acting on behalf of the institution--and the NCAA entered into this agreement, does not mean that it should not be analyzed in a court of law.

State College businesses are suffering because of the bowl ban, particularly travel related industries.  Former coaches are having trouble finding jobs because of the stigma of implied guilt due to acceptance of this decree.  Professors may also find employment opportunities vanish because of this stigma.  And no matter what anyone does, the damage to Joe Paterno's reputation is permanent.  Writers/journalists/reporters are never going to retract the vile commentary or public perception of Paterno they created.

And the NCAA does not care, as evidenced by the trite comment about Paterno's family being unable to unload some signed footballs after his death.  Such comments are insensitive and certainly do not belong in a legal brief.

Maybe the Paterno lawsuit isn't the best way to correct this injustice.  But right now, it appears to be the only way.  Let's move this to discovery and let the courts decide whether the NCAA was acting in good faith when it circumvented it's on protocols, punished a memeber school for no actual infractions, and then hides behind a consent decree that is not the normal legal standard for this type of situation.

It's a Start!

For the first time since November 2011, I have some REAL good news to pass on.

It appears the hard work of "restoring" Penn State's image is starting to pay off.  (Penn Staters already know that there never was a problem with the image until the attorney general and the media lit a fire that could not be quenched without a blood sacrifice.) 

But be that as it may be, the walls are starting to crumble, freeing the Penn State football program from penalties it never deserved.

From the NCAA's own site:

Due to Penn State University’s continued progress toward ensuring athletics integrity, the NCAA Executive Committee is gradually restoring football scholarships the university lost because of sanctions more than a year ago. These changes were endorsed by the Division I Board of Directors and based on the recommendation of George Mitchell, the independent Athletics Integrity Monitor for Penn State and former U.S. Senator.

We can bicker all we want about whether Penn State ever stopped ensuring athletic integrity, but this is still a crucial step in making the football program competitive again.  We can worry about semantics later.  The following graphic shows the restoration:

Penn State scholarships gradually restored

Year	Initial	Total
2014-15	20	75
2015-16	25	80
2016-17	25	85
2017-18	25	85

The Consent Decree was also amended.

We still need to address the Bowl/Post-Season Ban, but this is a step in the right direction.

NCAA Seeks to Dismiss Case

Or, What is something we all expected for $500, Alex?

According to this article on Yahoo Sports . . .

The NCAA also firmly denied a claim that it had conspired with former FBI director Louis Freeh's team in formulating the sanctions. Freeh led the school's internal investigation into the scandal, and the Paterno family and three former school officials have vehemently denied Freeh's scathing allegations of a cover-up. 

''Their suit complains primarily about the conclusions of the Freeh Report, conducted at the behest of the Penn State Board, and the university's acceptance of its findings,'' NCAA chief legal officer Donald Remy said in a statement outlining the organization's arguments. ''The NCAA did not commission the Freeh Report nor had any role in it."

Yet, the NCAA had no problem using that report as the sole basis for their unprecedented punishment of a member school.

I must admit, though, that the NCAA attorney's are absolutely brilliant.  The whole Consent Decree thing has to be one of the legal coups in the history of this country.

We didn't commission the report (or conspire with it) yet we used it in place of our investigation.  You commissioned the report, tacitly accepted the report, and agreed to allow us to punish you for it.

I just hope the courts realize that all this legal posturing and pointing out technicalities doesn't divert attention to the fact that these actions have HARMED other people, whether they were party to these shenanigans or not.

This is America.  Why not ALLOW the courts to actually examine this situation?  If the NCAA is really innocent of any wrongdoing, then presumably they will be acquitted. 

If the Freeh Report fits, then they must acquit!  Do a victory dance and counter sue the Paterno's et. al. for your court expenses, lost revenue, etc.

I have a feeling, though, that the NCAA is far from confident that the courts will find in their favor, and dismissal is not only a legal tactic, but an essential survival tactic.

At this point, there are several trustees still part of the original suit which hopefully will give further credence to "standing."

Newly elected-trustees have also come forward on PS4RS:

As newly elected Trustees to the Board of Trustees of The Pennsylvania State University, we want to make clear that we fully support the legal claims filed against the NCAA by our Trustee colleagues Al Clemens, Ryan McCombie, Peter Khoury, Anthony Lubrano and Adam Taliaferro. 

Based on information we have reviewed, we agree the NCAA breached its contractual obligations to Penn State to treat the University and its student-athletes, coaches and administrators fairly and in accordance with the NCAA’s own constitution and bylaws. That did not happen. Rather, the University and the affected individuals were denied due process of law. 

We support a legal review of the sanctions imposed on Penn State, the basis for the sanctions and the process used to enact them. 

We further support an open and thorough review of the Freeh report by the Board of Trustees in light of accounts from credible and respected sources that the report is seriously flawed and incomplete. This report is the sole basis for the NCAA sanctions and has become the reference point for the media and the public. It is accepted as truth because the board never formally rejected it. As Board Chairman Keith Masser recently observed in USA Today however, many of the conclusions in the report appear to amount to “speculation.” In our view, this matter calls for openness, thoroughness and transparency. The greater Penn State community has been calling for this action, and they deserve no less.

I'm not holding my breath, but I am praying that the judge allows this claim to move on.  Hey!  Maybe I am in favor of MOVING ON after all!  Especially if it involves moving on all over the corrupt NCAA!

Corbett Fires Back

The NCAA responded to Gov. Corbett's lawsuit against them in a motion to dismiss the case.  (No surprise there!)

Specifically, the NCAA claims:

“We are disappointed by the Governor’s action [Wednesday]. Not only does this forthcoming lawsuit appear to be without merit, it is an affront to all of the victims in this tragedy — lives that were destroyed by the criminal actions of Jerry Sandusky,” Remy said. “While the innocence that was stolen can never be restored, Penn State has accepted the consequences for its role and the role of its employees and is moving forward. The announcement by the Governor is a setback to the University’s efforts.”

Corbett contends the university and the state have been harmed by what he called “harsh penalties” over the abuse committed by Sandusky, a former assistant football coach.
 

Note the subtle but often used misdirection . . . the "affront" to all the victims.  Puh-lease.  This hasn't been about the victims from the start, and it certainly isn't about them now.  Let's be perfectly clear here:  What Jerry Sandusky did to those kids was inexcusable and he is being punished for that.  So let's focus on what this is really about . . . is Penn State and the current football team culpable in this whole sordid mess or not? And for the State of Pennsylvania, the issue is about the economic impact.  So for those of you who need things spelled out very slowly . . . the economic impact is NOT more important than the health of children . . .but are the current penalties fair considering all the evidence, not just the Gospel According to Freeh.

What many fans are arguing for is not whether or not crimes were committed against children and whether those are heinous or not, but rather is it appropriate to punish the players today for crimes perpetrated more than a decade ago.  The Freeh Report claims there was a conspiracy.  The NCAA acted on that information.  Many have questioned the validity of Freeh's conclusions, including a recent report sponsored by the Paterno Family which included a number of experts who not only critique Freeh's efforts, but seriously cast doubt on the conclusion that a conspiracy to cover up even existed.  And lost in all this emotion is the fact that no one at Penn State University has been convicted of failure to report so far.  Unfortunately, those trials may take years.

As an aside, I find it interesting that Sandusky can be convicted in months on 42 counts, but we can't get these other trials to court on a single charge of failure to report.

But not to be out done, Corbett has fired back in this game of ping-pong:

Corbett said the judge should not grant the NCAA's request to dismiss the case, saying college sports' governing body made a factual error when it said the penalties were voted on by the university's trustees.

"The NCAA wrongly claims that its arbitrary decimation of the PSU football program is no different than its enforcement of rules regulating player eligibility or uniforms - which do enhance collegiate competition - although PSU was not found to have violated a single NCAA rule and the NCAA's own president insisted that the consent decree was not an enforcement action," Corbett's lawyers wrote.

The NCAA has said the penalties are unrelated to regulation of economic activity so antitrust law doesn't apply.
 

So here's a radical thought . . . why don't we just let the COURTS hear these arguments and go from there?  Of course, the NCAA doesn't want to risk that, because they have NO LEGAL BASIS outside of the piece of crap CONSENT DECREE they are cowardly hiding behind right now.

Holding Out for a Hero

The more I read about this whole situation at Penn State, with the mad rush to pass judgment and punish without due process, the more frustrated I become.

Not one NCAA rule was violated.

Not one Penn State employee has been convicted of any crime or wrong doing.

Yet, we have what we have.

I keep hoping each day that something will surface to change the risen tide of public opinion and emotions that swept over Penn State like a tsunami.

But I am deluding myself.

We no longer have men like George Washington, Thomas Jefferson, Abraham Lincoln, Teddy Roosevelt, Will Rogers or John Wayne.  Or, dare I say it, Joe Paterno.

We live in a country where the President isn't impeached, because he changes the definition of sex.

We live in a country where the Supreme Court fails to protect its citizens, because we define the unconstitutional behavior as a tax.

So why should I hold out any hope that Penn State and Joe Paterno will ever see truth and justice.

Instead of writing off the wrong as a misinterpretation of a word or calling it a tax, we call it a "consent decree."  And we do nothing to stop it.  Truth is, the very people (lawyers, politicians, media, etc.) who have allowed this kind of thinking won't allow it to be stopped.

Be honest.  If you have no legal training, had you ever heard of a consent decree before this?  How many member institutions have ever signed a consent decree with the NCAA?  It's very existence is proof in itself that this whole approach by the NCAA was shady--or why would they need a consent decree in the first place?  Res ipsa loquitur to quote the legals.  The thing speaks for itself.

One might argue that this is a special case, and should not be compared to other situations using the same criteria.  To some extent, that is true.  There is no other instance that I know of where a volunteer organization imposed penalties on someone or something for a crime that has not even been settled in court yet.

But either way, a consent decree is simply another way of changing the rules to justify an unjust situation.

It shouldn't have been offered.  It shouldn't have been signed.  The NCAA has no authority to do what it did, but will now hide behind their redefinition of the situation.

And no one will stop it.

I am holding out little hope.

Where have all the good men gone


And where are all the gods?

Where's the street-wise Hercules

To fight the rising odds?

Isn't there a white knight upon a fiery steed?

Late at night I toss and I turn and I dream of what I need

I'm holding out for hero.

I just don't know how long I can hold on.