Legal Pissing Contest

Well, boys and girls, much water has flowed under the bridge since we last touched bases with respect to the NCAA vs. Penn State sanction morass, so your intrepid, albeit sporadic, reporter is here with his latest take on the happenings of this past several days, a particularly active period on the NCAA scum sucker front. The first subject we’ll address in the posts with which you will be bombarded today is the NCAA’s response to the antitrust suit filed by Governor Tom Corbett.

NCAA Files Motion to Dismiss

We all knew this one was coming when we first learned of the antitrust suit against the NCAA filed by Governor Tom Corbett on behalf of the Commonwealth of Pennsylvania on January 2. (See my analysis back then.) That’s why the NCAA has lawyers, at least the outside ones that are engaged to defend NCAA’s honor, such as it is. Naturally, their first cut at emerging victorious from this contest of wills is to get the case thrown out of court. Toward this end they have filed a motion  to dismiss, based on the key point that Pennsylvania is standing on thin ice trying to sue the high and mighty NCAA on issues surrounding discipline. In their dismissive comments, the NCAA posited that Pennsylvania was inappropriately attempting  “to drag the federal courts into an intra-state political dispute.”

Now, we’re all Philadelphia lawyers (this description fits some of you literally) and we’re all sports fans. So it is a sporting thing to do to analyze everything six ways to Sunday, create odds, make bets, and spend endless hours in barrooms bullshitting about every aspect of this case. Pseudo-experts abound and their opinions can be found just about everywhere — and you know what “they” say about opinions. Of course, to those who issue them, including hacks who publish or broadcast their opinions, these opinions are fact. That goes for this turkey, too. You don’t hear us blowhards spouting “it is my belief that…”. No. We say, “trust me when I tell you that…”. In other words, we’re “pretty sure”. Almost positive. How the hell can you be “almost” positive? But I digress.

Well, the NCAA lawyers, who are paid for their opinions, responded categorically to the issues raised by the January 2 filing by Pennsylvania. You can read the full text of the motion, but I’ll pull its four important points out of the legalese in case you don’t want to wade through it. I’ve interspersed my irreverent, ironical comments.

1. Based on a precedent established by a ruling in a 1998 antitrust case, the NCAA’s regulation of college sports is subject to antitrust scrutiny only if it directly regulates economic activity. This, I think is the crux of whether the suit will ever go to trial, and it is the issue about which we all have been fed the most “expert” opinions.
2. Even if the antitrust laws applied, the NCAA asserts that it is the guardian of the ethics and character of intercollegiate athletics, and that’s what makes college sports the wonderful thing that it is. This is based on a 1984 ruling that opined, “In performing this rule [the NCAA’s] actions widen consumer choice — not only the choices available to sports fans but also those available to athletes — and hence can be viewed as procompetitive [sic].” While I’m not sure this was true in 1984, lots has changed in the past 29 years in the world of college money sports, and I’m “almost positive” that it ain’t true now. But the NCAA takes off from this platform of being the ethical guiding light and standard-bearer for truth and justice in athletics to conclude that they weren’t punishing Penn State for what Jerry Sandusky had done, but rather that the “culture of reverence for the football program and a desire to protect it”  had imperiled the tender, developmental minds of the aspiring NFL millionaires on the team. In other words, contrary to what Pennsylvania alleges, it ain’t about Sandusky.
3. The NCAA snottily determines that Pennsylvania insufficiently proves what markets are involved in its antitrust action, and it further fails to make its point that these ostensibly nebulous markets were subjected to lessened competition at the behest of the NCAA. The NCAA contends that competition in these nationwide markets (which apparently they can identify, even if the plaintiff can’t) couldn’t possibly have altered by anything the little ol’ NCAA did. Poor little us. Explaining further, the response states that while Penn State might have been “athletically disadvantaged” by the Consent Decree, the antitrust laws protect competition not competitors. Important legal distinction here for all you Philadelphia lawyers to debate over martinis, eh?
4. Last, the legal geniuses at the NCAA are claiming that Pennsylvania isn’t “suing on behalf of anyone who has antitrust injury or standing to sue”. They’re betting all their marbles on the Consent Decree being the be-all and end-all feature of this case. Penn State signed it and Penn State will have to live with it. Even as patron of all things Pennsylvaniesque, Governor Corbett doesn’t have the authority to challenge the decision made by Penn State to sign the famous decree and accept its punishment. Therefore, the complaint should be dismissed.

Now, you know and I know that the NCAA has enough dirty laundry to want to throw up a huge smokescreen and belay more adverse publicity. They certainly have had their share of calamities of late. However, in the clinical legal setting — unlike the infamous “court of public opinion” — all of that crap means nothing. Only the facts, the law, and how the judge(s) interpret the law as applied to the complaint matter. Are judges influenced by what they read in the newspaper and see on TV? They’re human, but the words “I’m almost positive” never appeared in a published legal decision.

So, we’ve been through the first round of point and counterpoint. Both sides made some reasonably good points and there are lots of shades of grey involved in this thing. I’d love for the NCAA to get their asses whipped here (particularly Emmert, who must be so unpopular now that even Vicky Triponey won’t talk with him), but there is no assurance that this case will ever see a courtroom. Who do you think scored points, and why?