I just got done reading 40 boring pages of legalese, so let me save you some time and trouble by summing up the lawsuit right here.
The primary plaintiff is Scott Paterno, joined by trustees, faculty, and former football coaches and players. I listed all of the individual names in my earlier post today.
The suit seeks a trial by jury in Centre County. Do you think the NCAA will not do everything it can to get that venue changed if they can’t prevail in the inevitable motions to dismiss?
I’ll skip 27 pages of preliminary and background information about the NCAA, the sanctions, the consent decree, and allegations of wrongdoing by the NCAA, diving right into the subject of “Current and Ongoing Harm.”
Here are the key points:
- All plaintiffs were unlawfully deprived of due process.
- Joe Paterno suffered damage to his good name and reputation, resulting in substantial pecuniary harm to his estate and causing other harm to his family.
- Bill Kenney and JayPa have suffered damage to their reputation and will be unable to secure comparable employment.
- The trustees have been rendered unable to fully carry out their administrative functions because of NCAA’s interference.
- Achievements of former student athletes have been wiped out by the NCAA’s sanctions, which vacated Penn State’s wins during their careers, devaluing their reputations and harming their professional careers.
- The faculty have been harmed because of the hits taken to Penn State’s reputation, in that they have a reduced ability to obtain grants and other funding.
And now, in greater detail, the claims. There are six counts.
Count I: Breach of Contract (Paterno family and Al Clemens)
The NCAA breached its contract by doing the following:
- purporting to exercise jurisdiction over a matter not caused by the football program
- taking actions and imposing sanctions via its Executive Committee, which has power only to address association-wide issues and no power to sanction individual members
- refusing to proceed against Penn State through the traditional enforcement process
- refusing to accept any appeals of the consent decree
- treating the Freeh Report as a “self-report” even though it was never voted on by the full Board of Trustees
- imposing sanctions on the basis of alleged violation of vague, inapplicable principles in the NCAA’s constitution
- imposing sanctions that are available only in cases of “major” violations without explaining why the conduct identified in the consent decree constituted a “major” violation
- imposing the penalty of vacated wins even though no ineligible student athlete was found to have competed during the years affected
- threatening to impose the “death penalty” on Penn State football when it had no authority to do so because Penn State is not and never has been a repeat offender
- failing to conduct its own investigation or explain its own investigative procedures and relying instead on the flawed Freeh report
The suit contends that Rod Erickson “did not, could not, and lacked any authority to, waive Plaintiffs’ rights and entitlement to [due process]“. Remember that Penn State is not a party to this suit. The Plaintiffs for this count are the Paterno family, Joe Paterno, and Al Clemens.
Count II: Breach of Contract (Bill Kenney, JayPa, McCombie, Lubrano, Khoury, Taliaferro, and all the former players)
Pretty much the same allegations as the first count, denying these plaintiffs fairness and claiming substantial economic loss, opportunity loss, reputational damage, emotional distress, and other damages. The NCAA could foresee these damages when it breached the contract.
Count III: Intentional Interference with Contractual Relations (Bill Kenney and JayPa)
The NCAA knew their actions would affect Kenney’s and JayPa’s future employment, business, and economic opportunities, but still took purposeful actions to harm them and interfere with their contractual relations, for which they lacked justification. As a result of the NCAA actions, Kenney and JayPa have been unable to secure comparable employment opportunities in their chosen field.
Count IV: Injurious Falsehood/Commercial Disparagement (Paterno Family)
- NCAA’s consent decree published and relied upon statements that disparaged Joe Paterno and the property of the Estate and Family of Joe Paterno
- Before the NCAA’s unlawful actions, Joe or his estate had a property interest in his name, and there was a valuable commercial market concerning Joe’s commercial property
- The statements in the consent decree regarding Joe’s character and conduct as head coach were false and defamatory, and constituted libel because they imputed dishonest conduct to Joe
- The NCAA widely disseminated these statements
- The NCAA either intended the publication of these statements to cause loss of revenue or they should have figured that would have been the effect
- The value of the Paterno estate suffered pecuniary loss, as did the Paterno family, resulting from NCAA’s conduct
- NCAA either knew their published statements were false or acted in reckless disregard
- NCAA’s conduct was malicious and outrageous and showed a reckless disregard for Joe Paterno’s rights
So, even though the family has pledged that any financial recovery will go to charity, they’re using the financial hit the family took to punish the NCAA for defaming Joe. Good plan!
Count V: Defamation (All Plaintiffs Except the Paterno Family)
- NCAA adopted the baseless statements in the Freeh Report that Paterno deliberately covered up information of child abuse against Sandusky because he was concerned about adverse publicity. NCAA also stated that the BoT had failed in its oversight duties and the entire Penn State community was responsible for creating a culture of “fear and deference”.
- NCAA stated that the issues they sought to address in the consent decree were “about the whole institution” and that “the Freeh Report … revealed [matters] that suggest really inappropriate behavior at every level of the university.”
- These and other statements are unsupported by evidence and made with intentional, reckless, or negligent disregard for their truth.
- The statements were published in the consent decree, which the NCAA disseminated to the entire world.
- The statements were false, defamatory, and irreparably harmed Plaintiffs’ reputations and lowered them in the estimation of the nation.
- The publication of the statements caused actual harm to Plaintiffs because it adversely affected their reputations, caused emotional distress, mental anguish, and humiliation, as well as inflicting financial loss.
Count VI: Civil Conspiracy (All Plaintiffs)
This is what we’ve been accusing the NCAA of doing all along. Should the case ever go to discovery, certain facts regarding NCAA conduct, including its close relationship with the Freeh Group will emerge. The NCAA will do whatever it can to prevent those facts from being unearthed. Some might think this count is far fetched and paranoic. I don’t agree.
- Emmert, Ray, and other NCAA employees conspired to work together with the Freeh firm to impose the unprecedented sanctions
- Emmert, Ray, and other NCAA employees bypassed the NCAA’s rules, deprived the Plaintiffs of their rights, and imposed sanctions on Penn State based on an investigation that did not consider whether Penn State had violated any of the NCAA’s rules.
- Emmert, Ray, and other NCAA employees acted with malice, intending to injure Plaintiffs.
- Emmert, Ray, and other NCAA employees, along with the Freeh firm performed a series of overt acts in furtherance of this conspiracy, to wit:
- the Executive committee and Ray purported to grant Emmert authority to investigate Penn State and impose sanctions, despite knowing that they didn’t have power to do so
- Emmert, Ray, and other NCAA employees worked closely and coordinated with the Freeh firm to help it prepare a report that included false conclusions that had not been reached through adequate investigation
- Emmert advised Rod Erickson that the NCAA would use the Freeh Report as a substitute for its own investigation, violating the NCAA’s own procedure
- “unknown NCAA employees” communicated to PSU counsel that the “death penalty” was on the table despite knowing that no such penalty could have been imposed under the NCAA rules
- Emmert threatened that if Penn State went to the media, the death penalty would be certain, thus extorting silence from Erickson
- Emmert imposed the consent decree on PSU based on the allegations in the Freeh Report, although doing so was impermissible under the NCAA’s own rules
- As a result of this conspiracy, Plaintiffs suffered actual damages
- Defendants’ conduct was malicious and outrageous and showed a reckless disregard for Plaintiff’s rights.
Yeah, you’re right. This count is the crux of the whole thing. When push comes to shove, the NCAA is too big for its britches and it is the big bully, hypocritically imposing penalties on others to avoid having its own skeletons emerge from their dusty closets. That’s why we hope to get this case to discovery. Oh, to prove that Count VI is accurately represented here!
So, what are the Plaintiffs asking? Thanks for asking, Self. Here is the relief requested:
- A declaratory judgment that the actions of the Defendants were unlawful and constitute a violation of the Plaintiffs’ contractual and legal rights.
- A declaratory judgment that the NCAA-imposed consent decree was unauthorized, unlawful, and void.
- Issuance of a permanent injunction preventing the NCAA from further enforcing the consent decree or the sanctions it improperly imposed.
- Compensatory damages for the losses described above.
- Punitive damages for outrageous, reckless, and intentional misconduct.
- Legal fees, etc.
- Anything else the Court can throw at them.
So that’s that for now. What do you think of the chances for getting this thing to trial or a settlement?