The NCAA engaged in unlawful conduct by breaching their contractual obligations and violated their duties of good and fair dealings when they imposed illegal penalties based on false assumptions and secret discussions from the Freeh Report, according to a new lawsuit being submitted in Centre County court today by lawyers representing the Paterno family, members of Penn State’s Board of Trustees, former coaches and players at Penn State. The goal of the lawsuit is to have the sanctions levied against Penn State overturned in addition to compensatory and punitive damages from the NCAA and a reimbursement of legal fees accumulated so far.
The lawsuit being filed includes six accusations against the NCAA, NCAA President Mark Emmert and former chairman of the executive committee Edward Ray, suggesting each acted in direct violation of the organization’s rules based on what the plaintiffs believe to be a flawed report authored by former FBI director Louis Freeh. Those charges include breach of contract, civil conspiracy, defamation and commercial disparagement.
“This case is further proof that the NCAA has lost all sense of its mission. If there was ever a situation that demanded meticulous review and a careful adherence to NCAA rules and guidelines, this was it. Instead, the NCAA placed a premium on speed over accuracy and precipitous action over due process,” said Wick Sollers, attorney for those filing the lawsuit.
The report compiled by Freeh and his team was commissioned by the university’s board of trustees last year in an effort to provide a careful examination of the responses and reactions of high-ranking officials within the Penn State administration. The report was critical in its assessment of the roles played by former university president Graham Spanier, athletics director Tim Curley and football coach Joe Paterno. The Paterno family responded to the Freeh report with a commissioned analysis of the Freeh report, which was equally critical of the Freeh report’s findings and analysis.
The NCAA waited issued a notice to Penn State that a review was ongoing following the initial stages of the Jerry Sandusky scandal, but no decisions were made until the Freeh report was released. The NCAA acted in unprecedented manner to handle Penn State by accepting the findings in the Freeh report and having Penn State president Rodney Erickson sign a consent decree without a full and proper NCAA investigation.
“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.”
While Penn State is on record of saying the university is not directly tied to this lawsuit, five members of the Board of Trustees are listed as participants in the lawsuit. As part of the consent decree, Penn State vacated any opportunity to formally fight the NCAA’s sanctions. Any attempt to combat the NCAA’s decisions could result in further and more severe sanctions from the NCAA.
This lawsuit is similar to the previous lawsuit filed by the state of Pennsylvania, which also seeks to have the sanctions issued by the NCAA to Penn State overturned. The state has also been at odds with the NCAA over the distribution of the $60 million fine money being paid by the university, with the money being designated for child abuse awareness. The state is fighting to keep the majority, if not all, of the fine money to be reserved for in-state organizations and awareness.
Penn State is closing in on one full year under sanctions and has three more seasons of postseason ineligibility and reduced scholarships to play through. The university has already made one payment toward the $60 million fine, which is to be paid in full by the end of the sanction period.
I do not really have a problem with the Paterno family heading up a continued search for more answers and clarity in to how the NCAA has operated. Unprecedented actions deserve more openness and explanation, and the checkered history of Freeh’s other recent investigations has been pretty well documented. It does come off more as a fight to protect the name and image of Joe Paterno, but if you can dig past the national narrative of the Paterno family, it does appear there is more to this than easily perceived.
How successful will this legal battle be? If the goal really is to have the sanctions against Penn State overturned, I would not hold your breath. Penn State commissioned the Freeh report and accepted the penalties, and I am just not sure there is any defense that will be able to overturn that in a court of law. As I have said with the state’s lawsuit against the NCAA, the only thing that may be gained from this legal battle will be uncovering answers to questions about the operation of the NCAA.
The NCAA may want to avoid long, drawn out legal wrangling and that could pay off in a sense. Emmert may act as if his organization is flawless at times, but the mounting criticism and legal battles could push the NCAA to a breaking point, which could lead to settlements with the state of Pennsylvania and/or this Paterno family lawsuit. A reduction in sanctions could very well be a realistic possibility now more than ever before, but do not count on any complete removal of sanctions.
If I were to take a guess right now, I would think a removal of the fourth year of NCAA sanctions would be the most likely scenario, but it would do Penn State a lot of good will to fulfill the $60 million payment on their own.
Kevin is the host of the No 2-Minute Warning podcast. Follow him on Twitter, Google+ and Facebook.