The Nittany Turkey

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

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NCAA files Fed suit against PA

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Immediately upon Governor Tom Corbett signing into law the bill designed to keep Penn State’s $60 million fine inside Pennsylvania, the geniuses at the NCAA filed suit in Federal court in an attempt to block the new law.

The new law, called the Pennsylvania Institution of Higher Education Monetary Penalty Endowment Act (or PIHEMPEA, for short), was endorsed by Corbett, who feels that it “makes sense and is the right thing to do.”

This turkey agrees — not with the NCAA’s fine, but with the Gov’s position. Sandusky committed his criminal acts in Pennsylvania, endangering the children of the commonwealth. So, why should the money, which is supposed to be used to provide resources and education to combat child sexual abuse, go elsewhere?

The NCAA obviously doesn’t agree, but why? I’ll tell you why. They just don’t know when to let up. We’re back to the best defense being a good offense yet again. The NCAA is so used to having its way about these punishment issues that it expects its targets to lay down and accept the penalty. When some backbone shows up, they go into attack mode.

Problems abound here and a plethora of questions beg to be asked. The NCAA is certainly exceeding its authority by going after a whole damn state, isn’t it? On the other hand, it is the state that is showing the backbone, not the university. Rod Erickson and the Board of Trustees essentially asked, “How high? when the NCAA said, “Jump!”, but the Pennsylvania legislature would have none of that pussification. Their response: “Drop dead!”

So, this suit names Corbett, along with the auditor general, the treasurer, and the chairman of the Pennsylvania Commission on Crime and Delinquency as co-defendants. These are the primary functionaries who would be engaged in distribution of the money or oversight of such distributions.

There is no doubt whatsoever in my birdbrain that the NCAA will once again attempt to hang its legal hat on the notion that Penn State signed the infamous consent decree, which in their minds was unassailably final. This is what appeasement does — it complicates the hell out of things later on when sanity returns. Now that sanity has indeed returned and people are thinking with their minds instead of their hearts and other bodily parts, we’re stuck with the too hastily signed consent decree. In my non-legal opinion, it isn’t worth the paper it’s written on, inasmuch as it was signed under duress — namely, the cocked gun of the “Death Penalty” pointed at Rod Erickson’s head. But’s that’s my mind and whether it makes any sense legally is something for the courts to decide. Suffice to know that it will be tested. It will undoubtedly be hashed and rehashed many times over in various courtrooms over the next few years.

What a huge waste of money all this is! Why does the NCAA care about the money remaining within the Commonwealth of Pennsylvania? What’s their stake in it? Here’s what their lawyers wrote:

“By seizing the funds and restricting eligibility to benefit from the funds only to Pennsylvania programs benefiting only Pennsylvania residents, the act will defeat the consent decree’s plain terms and frustrate the parties’ intended purpose.”

Would someone please tell me what the hell they’re doing? “Will defeat the consent decree’s plain terms and frustrate the parties’ intended purpose” — WTF? Where in the consent decree does it state that the funds will be used in any particular location, or not? And what really was the intent of “the parties”. (Presumably, the parties in question are the NCAA and Penn State University.) Did Penn State ever have a plan for spending a $60 million fine it didn’t know about until a day before the consent decree was signed? Did Emmert and his henchmen even have a plan in mind?

What the suit is about is control of the disbursement of the funds. Pure and simple. Pennsylvania wants it. The NCAA wants it. Pennsylvania passes a law. The NCAA sues. The lawsuit claims the new legislation is unconstitutional because it directs state officials to collect money to which the state is not entitled and the state has no right to change the contract between the NCAA and Penn State.

So what’s our friend Emmert have to say about all this? He essentially said that members must cleave unto him and if others get involved in modifying penalties, college sports would be “dramatically altered.” Ha! He be right.

You can read the Executive Summary of the suit, if you want to save some time, or read the actual filing, if you’re thus inclined. Also, you can read about this suit in ESPN.com or AP Sports.

 

 

Legal Pissing Contest

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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?

Sudden Impact: Fallout!

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A day has passed since Governor Tom Corbett filed suit against the NCAA on behalf of the Commonwealth of Pennsylvania. It is time for Sudden Impact to poke around for some diverse reactions.

“A state government challenging the NCAA’s power to regulate a matter only loosely connected to sports represents a worrisome alignment of litigants, facts and law for the NCAA.”  —Michael McCann

Based on what I’ve read thus far from my layman’s view, the most insightful legal analysis of the potential road ahead comes from Michael McCann, writing for Sports Illustrated. Michael McCann is director of the Sports Law Institute at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. ???? ????? He is also a visiting professor at the University of New Hampshire School of Law, where beginning in Fall 2013 he will launch and direct a sports and entertainment law institute. McCann fairly assesses the chances for both sides in this interesting and polarizing case without diving into the emotional or political abysses that characterize many of the other overnight reactions to Corbett’s lawsuit. If you want the straight scoop, McCann’s article, entitled “Analyzing key issues in Pennsylvania’s case against NCAA”  is a must read.

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One major facet of the story I wrote yesterday involves the NCAA and its media pals egregiously hiding behind “the victimmmmmmms” because there is no defense for the manner in which the NCAA heavy-handedly mauled Penn State, employing extortion while circumventing its own rules. Well, “Victim Four” has stepped forward and objected to being used as a smokescreen for the power-hungry organization. In a story by Dan Wetzel of Yahoo Sports, #4’s attorney states,  “The NCAA acted as if it were the victim in this tragedy, and failed to even take the pulse of the real victims before imposing its will.” The victim himself was not in favor of the sanctions against Penn State. Read all about it here.

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Naturally, the Pennsylvania political opportunists are out there waiting to pounce on Corbett, so expect the lawsuit to be challenged, laundered, put through the wringer, and hung out to dry. (Does anyone else remember when washing machines had wringers?) Anyhow, Bruce Castor, who might challenge the incumbent for the Republican nomination was cautiously vocal:

“Gov. Corbett originally embraced the NCAA’s sanctions against Penn State. His sudden reversal, and the decision to spend substantial taxpayer money on a federal lawsuit against the NCAA, now raises more questions than it answers. ????? ??? ?????? ”

Read the full story in PennLive.com. Expect a lot more of the same in the coming weeks and months.

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“The big problem is Penn State agreed to it. It’s hard to argue over procedure when you’ve got a negotiated deal.” —Steve Morrissey

The question of whether this case will even be heard by the District Court is a major one. Another PennLive.com article gives the responses of legal experts to questions regarding the case. One of those legal experts was Steve Morrissey, a member of the legal team that won a landmark 2008 anti-trust suit against the NCAA. “The big problem is Penn State agreed to it. It’s hard to argue over procedure when you’ve got a negotiated deal,” he said.

Negotiated? This Turkey feels that “negotiations” conducted under threats are not negotiations. Extortion is the word I used for the midnight machinations of Master Emmert and his Ninjas. However, who am I? I’m just a turkey, not a lawyer. ?????? ??? ???????? Read what the legal eagles are saying.

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Penn State Professor of Psychology Keith Nelson attended yesterday’s presser at the Nittany Lion Inn. He asserts that those of us who feel strongly about spanking the NCAA not just sit back and leave it to Tom Corbett and his legal team. We need to be vocal in our support, inasmuch as we’re up against some very significant hurdles (see above). If you’re hungry for more background on the NCAA’s flawed decisions, you might want to pick up a copy of Prof. Nelson’s book, Free the Nittany Lions! The Amazing Saga of the NCAA & PSU Football.

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No overnight reaction would be complete without the Grey Lady, the Paper of Record chiming in. The New York Times offers more legal opinions about the potential success or failure of Corbett’s case against the NCAA, including more words of wisdom from Steve Morrissey.

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Another major newspaper, the Washington Post, was unabashedly more polarized against Corbett and his legal maneuver, directly attacking his political motivation. “It is hard to image a more disgusting political maneuver, one which the good people of the commonwealth should denounce by punting him out of office,” wrote Post reporter Jennifer Rubin, in an op-ed entitled “Gov. Tom Corbett disgraces himself,” further plucking the harp strings in hopes of  exciting sympathetic vibrations, “The issue here really is not a legal one but a moral one. There is no penalty that can repair the damage to so many lives and correct the endemic corruption of a university that allowed a child predator to operate for so long.” The only thing that resonates with me is that there seems to be a media coalition that could be called “Babes Against Brass Balls” (BABBs). You’ve gotta read this!

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Tom Corbett felt the need to defend himself publicly, which he did via the Marty Griffin Show on Pittsburgh’s CBS radio affiliate, KDKA 1020. Full audio and a brief written story is available at KDKA’s website.

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This has been a mere smattering of the stories I’ve read this morning, so consider yourself smattered. But you know what? Where the hell are my manners. In all the hubbub about Corbett (who will be played by the late Leslie Nielsen in the forthcoming biopic) :), I forgot to wish you all a Very Happy, Healthy, and Prosperous 2013! Let it be so!