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Primarily about Penn State football, this is a tale told by idiots, full of sound and fury, signifying nothing.

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Archives for May 30, 2013

McCombie’s Letter to the BoT

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The following letter was sent yesterday by PSU trustee Ryan McCombie to Keith Masser, Chairman of the Board of Trustees. It was subsequently forwarded to the PS4RS mailing list. It is certainly worth sharing.

May 29, 2013

Dear Chairman Masser
Board of Trustees
The Pennsylvania State University Board of Trustees:

Early tomorrow, a group of current Trustees, faculty members, former student-athletes, former coaches and others, including members of the Paterno family, will file a civil action against the NCAA regarding the unlawful manner in which the Association, its President Mark Emmert and former Chairman Ed Ray acted to impose the excessive and unreasonable sanctions against The Pennsylvania State University.

I have spent much of my adult life overseas, most often in third world countries, working and fighting to preserve the freedoms that all Americans enjoy. The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian government manages personal behavior is the rule of law.

The rule of law is a three-legged stool on which freedom sits: (i) The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority; (ii) the second leg is that no one is above the law and no one is beneath it, and (iii) the third leg requires that the laws not be changed retroactively or without notice by those who enforce them. (excerpted from Judge Napolitano, JW Review article of 19 July 2012).

I believe that the NCAA has violated all three of these principals. ???? ????? I further believe that as the Penn State situation demonstrates, the NCAA is an out-of-control monopoly and that it has used its excessive power to threaten and bully its members.

The NCAA states that it is a voluntary organization and mandates that each voluntary member abide by its rules, decrees, sanctions and penalties or withdraw from the Association. This is disingenuous. The NCAA has a stranglehold on major college sports. A University cannot play sports on the national stage without membership in the NCAA. Therefore, the NCAA is a monopoly. ???? ???? ????

This lawsuit is being filed only after much thought and careful reflection. I have had many passionate conversations with Penn State faculty and staff, some of whom have asked to “just allow us to move on for the sake of our students.” I have heard the pleas of President Erickson and former Chairwoman Peetz of the Board of Trustees to do likewise. I understand that all of these dedicated professionals want to go on with their mission of educating our students. I also understand the risk that the NCAA may attempt to increase or enhance the sanctions unless we simply capitulate and surrender without complaint. However, I believe that there is a greater lesson here. Our fundamental civil rights are tenuous and fragile. If we do not stand up and defend them, we risk losing them. If we do not act to defend the civil rights of others, we risk losing our own.

I do believe that the principles contained in the NCAA-required “Athletics Integrity Agreement” are a matter of good governance for any University. Nevertheless, as difficult as our present circumstances are, I believe we have an obligation to ensure that our students understand that there are risks and potential adverse consequences in not standing up for fundamental rights.

I also believe we have an obligation to our faculty and alums to find the core truth of what may have happened at their alma mater and take steps to ensure that appropriate punishment is imposed for those guilty of committing criminal offenses. ???? ????

Americans are a fair-minded people and we have an obligation to ensure that fairness, due process and the rule of law is honored and fully supported.

For these reasons and others, I have agreed to participate in filing and prosecuting this civil action against the NCAA.I do not seek a predetermined result and have no idea what the outcome will be. If there is blame to be borne by any of our officials, a due process hearing will not hide the facts and we will accept the judgments that follow. There have been a great many mistakes made in this tragic and unfortunate situation, which began with the shameful victimization of young children by one man. However, these mistakes are compounded by an organization that has become too powerful, too thirsty for positive media attention, and too willing to use its authority in a manner that went well beyond its charter, by-laws or established precedent.

Respectfully,

Ryan J. McCombie
Member, Board of Trustees
The Pennsylvania State University

Paterno, et. al. v. NCAA, et. al.

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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:

  1. All plaintiffs were unlawfully deprived of due process.
  2. 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.
  3. Bill Kenney and JayPa have suffered damage to their reputation and will be unable to secure comparable employment.
  4. The trustees have been rendered unable to fully carry out their administrative functions because of NCAA’s interference.
  5. 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.
  6. 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:
    1. 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
    2. 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
    3. 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
    4. “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
    5. Emmert threatened that if Penn State went to the media, the death penalty would be certain, thus extorting silence from Erickson
    6. 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:

  1. A declaratory judgment that the actions of the Defendants were unlawful and constitute a violation of the Plaintiffs’ contractual and legal rights.
  2. A declaratory judgment that the NCAA-imposed consent decree was unauthorized, unlawful, and void.
  3. Issuance of a permanent injunction preventing the NCAA from further enforcing the consent decree or the sanctions it improperly imposed.
  4. Compensatory damages for the losses described above.
  5. Punitive damages for outrageous, reckless, and intentional misconduct.
  6. Legal fees, etc.
  7. 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?

Costas didn’t speak, but we listened

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The hockey game went into overtime, so have another cup of coffee. You’ve earned it. Costas wound up getting bumped back to 11:40, so you struggled to stay awake. (Not I — I was still wound up from a tight, hotly contested hockey game that was almost ruined by a controversial referee’s call in the waning moments of regulation time. In the end, though, that call was mitigated by the winning goal being scored by Chicago in overtime. But I digress.)

If you were hoping that the great, albeit diminutive, god of sports journalism was going to take a pro-Penn State stand, you were grossly disappointed by Costas stating that he was moderating, not advocating:

“…when word got out that we’d be doing this program, some might have thought that we would be taking an advocacy position. We are not.”

He went on to say that the program couldn’t cover the subject with any degree of depth and then pointed viewers who wanted more detail to web sites where they could obtain the Freeh report and the Paterno/Sollers report. Costas made it clear that the viewpoints to be presented on his show would be one collection of opinions expressed by the Paterno family, as represented by Dan McGinn, Dick Thornburgh, and Wick Sollers, not necessarily endorsed by him or NBC Sports. He would allow them to present their case without hostile questioning.

Well, geez! What about all the crap about Costas changing his mind and having misgivings about the Freeh report? That must have evaporated somewhere between the Kevin Slaten radio show and the offices of the NBC corporate counsel. Probably closer to the latter. Nope. Don’t want NBC involved in endless court cases. Be neutral, Bob. Be neutral.

Well, that took the wind out of lots of sails — wayward ships of fools hoping that Costas would set them on a straight course to maritime nirvana or something. (I’m so full of shit this morning.) In any case, much of what would be laid out on this program amounted to tedious repetition of stuff we already knew.

Costas did mention that he invited Mark Emmert and Louis Freeh to appear, but they declined. They have an open invitation from Costas to make fools out of themselves at any time. That ain’t gonna happen. He said that had they shown up, the questioning would have been quite different, indeed becoming a point and counterpoint discussion. Gloriosky, Bob! Woulda, coulda, shoulda! The saddest four words of thought or pen: what might have been.

And so, with the groundwork laid, each of the players stepped up to the plate and took a few swings. The discussion went on for a while, touching on areas of which we are all aware. (If you’re new to this whole thing, you’re in the wrong place. Like Costas, I won’t be discussing particulars of the Freeh report or the Paterno report. We’ve beaten that necrotic horse repeatedly here. I’m concerned only with what went down last night, and most of it was not new ground.)

The newsworthy event of last night, for which we were well prepared by afternoon leaks, was the announcement by Paterno family attorney Wick Sollers that the the family, joined by certain others, would be filing a lawsuit against the NCAA to vacate its draconian sanctions against Penn State that were based solely on the flawed results of the Freeh report, claiming “unlawful conduct” by the NCAA.

The suit will be filed today in Common Pleas Court of Centre County. It asserts that the NCAA, its president, Mark Emmert, and former chairman of the executive committee, Edward Ray, acted in clear and direct violation of the organization’s own rules. The consent decree with Penn State was hastily imposed on the University, completely disregarding the rights of the affected parties.

“An illegally imposed penalty that is based on false assumptions and secret discussions is a disservice to the victims and everyone else who cares about the truth of the Sandusky scandal,” Sollers said. “This matter will never be resolved until the full facts are reviewed in a lawful and transparent manner.”

The co-plaintiffs in the suit are worthy of note. Aside from the Paterno family, trustees Ryan McCombie, Anthony Lubrano, Al Clemens, Peter Khoury, and Adam Taliaferro; along with PSU faculty members Peter Bordi, Terry Engelder, Spencer Niles, and John O’Donnell; plus former Penn State football coaches Bill Kenney and JayPa; and finally, former Nittany Lions Anthony “Spice” Adams, Gerald Cadogan, Shamar Finney, Justin Kurpeikis, Rich Gardner, Josh Gaines, Patrick Mauti, Anwar Phillips, and Mike Robinson.

Also worthy of note is that the suit names Mark Emmert and Edward Ray as co-defendants.

The official media release issued by McGinn’s firm states:

The lawsuit lodges six counts against the NCAA, Emmert and Ray, including breech of contract, civil conspiracy, defamation and commercial disparagement. In addition to overturning the sanctions, the lawsuit seeks compensatory and punitive damages from the NCAA for its improper conduct and breach of contract, as well as reimbursement for legal costs. With respect to the Paterno estate, it will donate the net proceeds of any monetary recovery from this lawsuit to charity.

The family’s official position is that they’re not primarily seeking to restore Joe Paterno’s good name and reputation, which have been immutably tarnished by the Sandusky scandal. Instead, they are seeking truth and justice for all. Obviously, they’re not interested in the money if they’re going to give their winners’ share to charity. But beyond the official position, the family (and most of us) want redemption for Paterno.

When Costas asked McGinn if the family would be happy if the public opinion eventually shifted to paint Paterno as a good man who lived the right way but who became negligent in later years and should have been more proactive in dealing with Sandusky, the response from McGinn was a flat “No.” He went on to say that Joe was a moral man who was fooled by an “incredibly sophisticated criminal”. Clearly, as family spokesman, McGinn is seeking complete exoneration for Paterno.

Wick Sollers opined that the NCAA would do anything within its powers and budget to keep this case from going to trial because discovery would be painful. That’s the crux and that’s why we’re all licking our chops thinking of the veritable feast that lies ahead if either this case or Corbett’s suit (or both) are allowed by the courts to proceed. The NCAA has the money and the legal talent to conduct a withering battle, though. It ain’t going to be easy.

No doubt, the NCAA will point out over and over again that Penn State (in the personage of Rod Erickson) signed a consent decree, laying itself at the NCAA’s feet crying mea maxima culpa. The Sollers suit will counter that with the notion that the consent decree was a midnight “cram-down”, signed under duress and under the threat of complete shutdown of the football program for a period of time, which violated the NCAA’s own rules. We are already quite familiar with the arguments on both sides of that debate.

Who knows where this will go. Given the NCAA’s ability to outspend its opponents, we could be dealing with years of legal bullshit. Many important facts will arise out of the criminal cases against Spanier, Curley, and Schultz, but will they have any bearing on this lawsuit (or Corbett’s)? The NCAA will wear us down. Eventually, passion will fade and this whole thing will become just so much background noise. We might have to be content to dent Mark Emmert’s impervious shell, rather than vaporize it.

The suit will be filed today. Here it is.