Antitrust, Cozen O'Connor, Education / Schools, Football, Sports

Pennsylvania Governor and NCAA Go to Court to Cover Their Own Asses

Some post-Soviet states kept Lenin statues up longer than Penn State kept JoePa’s.

The Commonwealth of Pennsylvania is about to do what the Southeastern Conference (the “SEC” that actually takes down its targets) does every week on the recruiting trail: tell the NCAA to get bent.

Yesterday, Governor Tom Corbett filed a federal antitrust suit in Harrisburg alleging that the NCAA overstepped its authority in dropping the hammer on Penn State’s football program in the wake of the Jerry Sandusky sexual abuse scandal.

Apparently the NCAA may not have quasi-governmental authority to take millions in direct fines from public institutions in an effort to protect its brand name.

Pennsylvanian officials are understandably miffed because Penn State is directly paying millions in fines and missing out on millions more in bowl revenue. Taxpayer dollars intended for the public education of students that had nothing to do with the scandal are being siphoned away from the state to finance programs at the sole discretion of the NCAA leadership and the majority is spent outside Pennsylvania.

The NCAA counters that the criminal activity at Penn State was enabled by a culture of winning-at-all-costs and only the NCAA can appropriately discipline the school for that mindset.

But really this lawsuit comes down to two parties, the NCAA and Corbett, making desperate PR moves to cover their own asses. Is that in poor taste? Sure. Is it in even worse taste that the NCAA and Corbett are using this tragedy for their own purposes? Well let’s look at what they’ve been up to….

For those who were living under a rock last year, Jerry Sandusky served as an assistant football coach for Penn State University. In this role, he coached great linebackers and sexually abused kids. He’s in jail now.

There’s also a good deal of evidence that university officials, including University President Graham Spanier and athletic director Tim Curley, probably knew that Sandusky was a criminal and decided to cover it up. They’ve been indicted. Football coaching legend Joe Paterno may have had some idea too… but he’s dead, so he’s not facing prosecution.

And this is where the embarrassing stories of the NCAA and Governor Corbett come in:

1) The NCAA got in way over its head hoping no one would notice.

This lawsuit was a long time coming. The NCAA has nebulous authority to do much of anything, and the idea that a loose, voluntary association of colleges possessed the authority to rob a state institution for anything other than a violation of the NCAA’s own rules always seemed suspect. Once the organization decided to take a bite out of a public university, repercussions became inevitable.

Lest you have an inaccurate impression of the NCAA’s power and wise leadership role, this is an organization that banned bagels and cream cheese as recently as last year. Whether a school can serve cream cheese with bagels is actually a topic that requires meetings for the NCAA.

Unrelated picture of Cam Newton.

Its reputation is not helped by its history as an enforcement agency for its own Byzantine recruitment rules. The NCAA is an organization that could dismiss the statements of a purely hypothetical pay-for-play scandal from the, again purely hypothetical, athlete himself for reasons that had absolutely nothing at all to do with Heisman Trophies or National Championships.

And in a way, the sanctions against Penn State reflected an NCAA stung by allegations of its own impotence and thus reacted by buying the proverbial red sports car to compensate for its dysfunction. And then taking a lot of unnecessary risks.

The NCAA imposed the most serious sanctions it could short of the “death penalty” — functionally killing the football program. Imposing a four-year bowl ban for the team, a $60 million fine, oodles of scholarship reductions, and vacating all wins from 1998 to 2011 was an ambitious set of sanctions for a transgression that the NCAA had only questionable jurisdiction to punish. A circumscribed response might have escaped scrutiny, but when you’re in the throes of a midlife crisis, why pull punches?

The NCAA also commissioned a report leveling all sorts of allegations and then released it to the public. Not to besmirch the report, but if Spanier or Curley get acquitted, this report is just libel suit bait. Waiting until the trials concluded would have reduced the NCAA’s future exposure — if you assume that getting it right was the NCAA’s goal.

But the 43-page complaint does not think the NCAA was trying to get it right. It doesn’t mince words in alleging that the NCAA tried to capitalize on the Sandusky scandal in order to bolster its own power. That sounds about right. Desperate to get out of the petty ante stuff the NCAA usually handles, the Penn State case, like the USC case before it, signaled a new, more aggressive NCAA — precedent be damned.

So this lawsuit becomes a public referendum on the scope of the NCAA’s new enforcement powers. A loss could render the NCAA gun shy in enforcing future institutional excesses… you know, more so.

2) Governor Corbett is hoping this makes people forget his involvement in the Sandusky case.

‘Let me make this clear… I will not let anything stand between me and making you all forget that I dropped the ball here.’

But let’s not obscure the naked political nature of this suit. The press conference announcing this suit positioned Governor Corbett as a leader committed to getting justice for the people of Pennsylvania. Unfortunately, Corbett’s record on getting justice for Sandusky’s actual victims is a serious question.

Before becoming governor, Tom Corbett served as Pennsylvania’s Attorney General, and in that role he heard a lot of evidence about Jerry Sandusky’s criminal behavior and did… pretty much nothing about it. In November, Kathleen Kane, the incoming Attorney General, campaigned on a pledge to launch a probe into Corbett’s inaction in the face of mounting evidence and labeled her opponent as “hand-picked” by Corbett to protect his legacy at the AG’s office.

Corbett filed this lawsuit after gaining permission from lame duck Attorney General Linda Kelly, a political crony, to handle the suit from the Governor’s office rather than the AG’s office. Corbett plans to outsource the handling of the lawsuit to Cozen O’Connor, citing the overworked attorneys at the AG’s office busily handling the Sandusky-related prosecutions. It’s unclear why the attorneys in the department responsible for antitrust litigation on behalf of Pennsylvania are bogged down by criminal Sandusky prosecutions, but I’m sure that’s the issue, and not the fact that the incoming AG is a Democrat.

With the suit under his direction, Corbett gets to recapture the Penn State story on his own terms — “Why did you let Sandusky walk for 33 months?,” transitions to, “I’m trying to protect future Penn State students.” Look at the monkey!

And thus we have two litigants brought to court in an effort to cover up their own failings. A litigation where the tangible outcome is much less important to either side than winning vindication in the eyes of the public.

Joe Patrice is the author of Recess Appointment, a blog about political rhetoric, and he’ll be dropping in occasionally to write about the intersection of law and politics. To answer the question that you’re probably about to ask, he got his J.D. at NYU and spent ten years working at a Biglaw firm and a white-collar defense boutique. His favorite word is sesquipedalian.

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