NCAA’s power at core of Tom Corbett’s PSU lawsuit

Pennsylvania Gov. Tom Corbett announced Wednesday that the state will file a federal antitrust lawsuit against the NCAA for placing heavy sanctions against Penn State football over its handling of the Jerry Sandusky scandal.

It's a lawsuit that while serving as an intriguing challenge to the NCAA's power also appears to be an act of political grandstanding that actually might make college sports' governing body look sympathetic.

This is politicians v. bureaucrats. Good luck picking a side.

Penn State itself is not party to the lawsuit and Corbett isn't even using the state's attorney general's office to file the claim. He'll instead use his office's outside counsel and an additional law firm.

Corbett is seeking no monetary judgment, just an injunction against sanctions that call for, among other things, scholarship reductions and a four-year postseason ban. He cites the economic impact of a weakened Nittany Lion program's effect on businesses in the State College area.

“The citizens and the businesses of Pennsylvania have been harmed,” Corbett said.

Penn State went 8-4 last season but attendance fell to a reported average of 96,730 fans at 107,000-seat Beaver Stadium. It represented a drop of 4,697 from 2010 and the lowest since 2001. However, it was a continuation of a five-year trend of dropping attendance.

The NCAA responded Wednesday with a statement expressing disappointment in Corbett for extending a scandal that Penn State itself expressed interest in putting behind it.

“We are disappointed by the Governor's action today. 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. 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. Today's announcement by the Governor is a setback to the University's efforts.”

The heart of Corbett's lawsuit is simple: the NCAA overstepped its authority and circumvented its long-held rule-enforcement guidelines to hit Penn State up for promoting what the NCAA called a “football-first” culture that allowed Sandusky to operate.

[Related: Sandusky Victim No. 4 backs PSU lawsuit against NCAA]

On this, Corbett clearly has an argument and isn't the first person to question exactly how the NCAA's system works, whether it's fair or what power it truly has to issue such sweeping decisions, particularly in this case.

Sandusky, the school's former defensive coordinator, was convicted in June on 45 counts of child sexual assault of 10 victims, with many of the acts occurring on campus where he used his access to Joe Paterno's legendary program as bait.

In punishing Penn State, the NCAA cited the failure of university officials in 2001 to turn over to proper authorities a claim by a then assistant coach that he witnessed Sandusky showering inappropriately with a young boy in a locker room. Sandusky went on to abuse additional victims until 2009. He is currently serving 30 to 60 years in a southwest Pennsylvania prison.

NCAA president Mark Emmert, in a move the NCAA itself touted as “unprecedented,” asked the organization's board of trustees to grant him sweeping power to rule on the case, sidestepping the often lengthy and exhaustive NCAA infractions process.

Emmert cited the school's acceptance of a self-commissioned internal report by former FBI director Louis Freeh in July as the basis for that decision. He handed down significant penalties, including a four-year postseason ban, four years of scholarship reductions, the vacating of some of Paterno's victories and a $60 million fine, among other items.

“We cannot look to NCAA history to determine how to handle circumstances so disturbing, shocking and disappointing,” Emmert said in July of claiming a new power.

Ed Ray, the president of Oregon State and executive chairman of the board of trustees, defended the NCAA's decision.

"There has been much speculation on whether or not the NCAA has the authority to impose any type of penalty related to Penn State," Ray said. "This egregious behavior not only goes against our rules and constitution, but also against our values."

Penn State accepted the sanctions imposed against it in July, even though some begged for a challenge. (For example, why vacate victories to 1998, when the original Sandusky police investigation yielded no criminal charges? What was Penn State to do at that point?). The school took a position it needed to just move on.

Corbett says the school's acceptance won't play a part in the lawsuit, even though Corbett himself is a sitting member of Penn State's board of trustees.

“I think Penn State had no choice given the ultimatums that the NCAA, improperly in my opinion, gave to the administration,” he said.

Corbett argues that the acts of Sandusky were criminal in nature and fall outside of the NCAA's realm, which as a trade organization is empowered to assure fair play among members. That generally is limited to cases involving academic scandals or prohibited extra benefits provided to athletes.

“The NCAA should not have sanctioned Penn State,” Corbett said. “This was a criminal matter, not a violation of NCAA rules.”

Corbett himself has been criticized for not pursuing Sandusky more diligently when he was the state's attorney general. Attorney General-elect Kathleen Kane has promised to investigate how Corbett handled the case. Corbett is a Republican, Kane a Democrat.

Corbett said this suit isn't to absolve Penn State's role in the Sandusky scandal. It's just not an athletics matter.

“Penn State does have a moral responsibility to the victims and the community,” he said. “And it has accepted that responsibility and working with the victims and the civil courts.”

All of this is fair game. The NCAA's officials made a power play. Pennsylvania is going to challenge them on it. This could go in any direction, although the NCAA has proven historically resilient to antitrust lawsuits.

Where the case seems to go sideways is the argument of who exactly is damaged. Challenging the core power of the NCAA is fine, but that wouldn't seem to be a priority of a sitting governor.

Penn State was not hit with the so-called “death penalty” so it continued, and will continue, to field a team. The postseason ban doesn't affect business directly in Pennsylvania since the Big Ten championship game and any bowl game are played outside the state. Sure Penn State is unlike to win as many games in the future due to the scholarship reductions, but that is neither certain (anything can happen) nor a particularly moving argument. It could have lost anyway. Is it Penn State's birthright to win 10 or more games each season?

While scholarship sanctions will limit 10 recruits a year from receiving a free education, that seems a rather small effected group and one that the school could easily remedy by providing ten additional academic scholarships to regular students at schools the football program routinely recruits.

Likewise, the argument over whether Penn State's $60 million fine should be doled out to youth groups in the state rather than nationally, as the NCAA wants, is reasonable, but again, not seemingly significant enough to call for as a federal lawsuit that could rack up millions in legal fees itself and take years to resolve.

Corbett's position is that businesses in State College were economically harmed by the cut in attendance for Penn State home games this season and there is a fear that will continue if there is a continued drop-off in victories.

“Look, this is big business,” James Schultz, the governor's legal counsel said. “You have the hospitality industry and all the folks associated with it; the small mom and pop businesses. You have the folks at the university associated with the football program. You have a number of people that have jobs related to the industry of football here in State College and around the Commonwealth.”

Again, there is still a football program at Penn State. There was no reported elimination of jobs (assistant coaches, support staff, trainers, etc.) at the university due to the sanctions, so that claim seems unsubstantiated.

Arguing that the NCAA is responsible for a cut in attendance, when it's the choice of individuals to attend or not, is a reach. Are Penn State fans solely motivated by wins and losses? The school fielded a successful and highly likeable team under coach Bill O'Brien this past season.

And who is to say some fans aren't staying away over disgust with how the university originally handled the Sandusky scandal? Not to mention, is there proof that the lack of attendance is from fans that would otherwise buy meals at local establishments and not bring their own tailgate?

Then there is the counter claim that one reason Penn State was so popular in the past was the perception that it ran the most ethical program in the country, a point of pride for fans.

That would've been significantly damaged in 2001 had the school subjected itself to a full and public police investigation into Sandusky's actions inside its facilities, particularly after a previous police investigation into Sandusky showering with a boy came in 1998.

At the time of the 2001 allegation, Penn State was coming off a 5-7 season (and would win just five games again the following year) and led by a then 75-year-old Paterno who was hearing growing cries to retire because he was too old to manage the program. Having the charges go public – the 1998 police investigation was buried by a school vice president – that he was allowing an old coach who was already under suspicion of inappropriate behavior with kids continued full access to the facilities could have been ruinous.

On an athletics level, the case could be interesting because this is a significant entity, an entire state, challenging the NCAA's authority. That has generally fallen to civil suits by individuals, ranging from former basketball coach Jerry Tarkanian to a current suit by former athletes headed by ex-UCLA basketball star Ed O'Bannon.

That said, Corbett's media conference offered little. “You didn't follow your own rules” is a claim, but then again, Emmert acted only after he was granted said power by the NCAA's board, which the NCAA is certain it had the authority to do.

Instead, in a bit of irony, the “too big to fail” concept of an entire state, and a sitting governor, clinging to the importance of future football success, was exactly what Emmert was trying to fight when he punished Penn State in the first place. Meanwhile the NCAA is using what it presumes is the opinion of the victims – "an affront" – as a public relations tool, without ever consulting the victims on their actual opinion.

So as has often been the case in the sideshow surrounding Jerry Sandusky, the victims have been pushed to the background and everyone else is left picking sides from dueling grandstanding agendas.

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