Paterno Family Takes Aim at Post-Sandusky Sanctions


     (CN) – The NCAA’s handling of the Penn State child sex scandal amounted to an “improper interference in and gross mishandling of a criminal matter that falls far outside the scope of [its] authority,” Joe Paterno’s family and others claim in court.
     Such “misuse and abuse of authority” led to “unprecedented imposition of sanctions on [Penn State] for conduct that did not violate the NCAA’s rules and was unrelated to any athletics issue the NCAA could permissibly regulate,” according to the complaint filed yesterday in Centre County Court.
     NCAA President Mark Emmert and former NCAA Executive Chairman Edward Ray are named as defendants with the NCAA to face six counts including breach of contract, bad faith, defamation and civil conspiracy.
     “Defendants unlawfully accused the members of the Penn State Board of Trustees and the coaching staff of failing to prevent unethical conduct, and deprived them of important procedural protections required under the NCAA’s rules,” the complaint states. “Defendants also breached the NCAA’s obligations owed to uninvolved student-athletes, coaches, administrators, and competitors, including the duty to ensure that those individuals are treated fairly in any NCAA enforcement action. In the course of their unlawful conduct, Defendants broadly criticized and disparaged the entire Penn State community, falsely, unfairly and irresponsibly accusing Plaintiffs of enabling and directly causing reprehensible criminal conduct.”
     The NCAA imposed a consent decree on Penn State after a two-year grand jury investigation implicated veteran coach Jerry Sandusky in a decades-long pattern of sexually abusing children. Sandusky is serving 30 to 60 years in prison after his 2012 conviction on 45 counts of child sex abuse.
     The sanctions imposed against Penn State include a $60 million fine, a four-year postseason ban, a four-year reduction of grants-in-aid, five years of probation, vacation of all football wins from 1998 to 2011, waiver of transfer rules and grant-in-aid retention, and a reservation of rights to initiate formal investigatory and disciplinary process and to impose sanctions an any involved individuals in the future.
     George Scott Paterno, son of the late head coach and representative of his estate, leads the lawsuit. He is joined as plaintiff by his brother, Joseph “Jay” Paterno, and William Kenney, both of whom served as assistant coaches under Joe Paterno.
     Five board members trustees, four PSU faculty members and nine former PSU football players, including Seahawks fullback Michael Robinson, are also plaintiffs.
     “Even though the Consent Decree relied on purported ‘facts’ that were contrary to the evidence and did not establish a violation of the NCAA’s rules, those rules were never considered by the Appeals Committee and involved individuals were denied procedural protections required by the NCAA’s rules,” the complaint states
     It goes on: “The NCAA has no authority to investigate or impose sanctions on member institutions for criminal matters unrelated to athletic competition at the collegiate level. Moreover, when there is an alleged violation of the NCAA’s rules, the constitution and bylaws require the NCAA to provide interested parties with certain, well-defined procedural protections, including rights of appeal. The constitution and bylaws are expressly intended to benefit not only the member institutions, but also their staff, students, and other individuals affected by conduct subjected to potential NCAA oversight and sanctions.
     “In the course of the events that gave rise to this lawsuit, Defendants engaged in malicious, unjustified, and unlawful acts, including penalizing and irreparably harming Plaintiffs for criminal conduct committed by a former assistant football coach. But the criminal conduct, which occurred in 1998 and 2001, was not an athletics issue properly regulated by the NCAA. Defendant’s actions far exceeded the scope of the NCAA’s authority and were taken in knowing and reckless disregard of plaintiff’s rights.”
     The Paternos and their cohorts claim that NCAA president Emmert later conceded “that ‘[a]s a criminal investigation, it was non of [the NCAA’s] business.” [Brackets in original.]
     They say that the private firm of Freeh Sporkin & Sullivan LLP, hired by a PSU-approved Special Investigations Task Force to investigate alleged initial personnel response failures and recommend future preventative policies, “was not engaged, and had no authority, to investigate or even consider whether any of the actions under its review constituted violations of the NCAA’s rules. It was never retained by the Penn State Board of Trustees for this purpose.” Freeh Sporkin is not named as a defendant.
     The firm’s 114-page report , with 120 pages of footnotes and exhibits, is available online.
     “Although the NCAA frequently takes years to conduct and complete an investigation, they moved to impose sanctions on Penn State almost immediately after the Freeh firm released its report,” the complaint states (emphasis in original).
     After the seven-and-a-half-month long Freeh investigation, the NCAA “circumvented the procedures required by the NCAA’s rules and violated and conspired with others to … [take] actions based on conclusions reached in a flawed, unsubstantiated, and controversial report that defendants knew or should have known was not the result of a through, reliable investigation; had been prepared without complying with the NCAA’s investigative rules and procedures; reached conclusions that were false, misleading, or otherwise unworthy of credence; and reflected an improper ‘rush to judgment’ based on unsound speculation and innuendo,” the complaint states. “Defendants also knew or should have known that by embracing the flawed report, they would effectively terminate the search for truth and cause plaintiffs harm. Nonetheless, defendants took their unauthorized and unlawful actions in an effort to deflect attention away from the NCAA’s institutional failures and to expand the scope of their own authority by exerting control over matters unrelated to recruiting and athletic competition.”
     The plaintiffs seek declaratory judgment and a permanent injunction, as well as compensatory and punitive damages.
     They are represented by Thomas Weber of Goldberg Katzman in Harrisburg, Pa.; Wick Sollers, Mark Jensen, Ashley Parrish and Alan Dial of King & Spaulding in Washington, D.C.; Paul Kelly and John Commisso of Jackson Lewis in Boston, Mass.

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