Centre judge hears arguments in Paterno suit against NCAA

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BELLEFONTE, Pa. -- Centre County Senior Judge John Leete listened to lawyers from both sides of the Paterno family's lawsuit against the NCAA at a hearing Tuesday and said that a written decision on the NCAA's motion to throw out the case would come in "due course."

The hearing was about clarification for a complicated case, one that Judge Leete said had "more citations than any case I've seen in 26 years."

The lawsuit was originally filed in late May, and in it 21 plaintiffs -- comprised of the family of late former Penn State University football coach Joe Paterno, former coaches and players, Penn State trustees and Penn State faculty -- seek the elimination of the NCAA sanctions imposed on Penn State in July 2012 and a declaration of wrongdoing.

Penn State agreed to the sanctions, including a four-year bowl ban, scholarship reductions, vacation of wins and a $60 million fine, through a consent decree based on findings from the Freeh Report. The report was critical of the university's conduct in the child sexual abuse scandal involving former assistant football coach Jerry Sandusky.

On Tuesday, lawyers for the NCAA said that the suit should be thrown out on grounds that none of the 21 plaintiffs have standing against the NCAA and couldn't specify how they were harmed by the organization. The plaintiffs are seeking to have the consent decree voided and an injunction ordered against enforcement of the sanctions. NCAA attorney Everett Johnson said none of those actions could be made without Penn State being involved. The university is neither a defendant or plaintiff in the suit.

"At the end of the day, it's impossible to think this is about anything other than undoing what Penn State has done," he said.

The plaintiffs' lawyers maintained that their clients have standing not because of the consent decree but because of NCAA rules, which would make them affected third parties. They said that when the NCAA bypassed its protocol and punished Penn State without notifying the plaintiffs or giving them a chance to defend themselves, it violated their rights as outlined under NCAA bylaws.

Judge Leete agreed with the plaintiffs' attorneys that the NCAA's actions were unprecedented, even making a joke about the NCAA's lack of transparency, but he questioned whether giving the plaintiffs third-party status could open the door for any Penn State athlete or administrator to be considered a third party in this case.

"If you're the third-string quarterback and played in 1999 and went on from there, do you have rights today under the theory you're setting forth?" he asked the Paterno family lawyers. " ... So we're talking about a much larger group."

Mr. Johnson, of the NCAA counsel, also said that Penn State chose to accept the consent decree knowing worse alternatives possibly existed. He said hypothetically that if the Paterno family and others win the lawsuit and the consent decree is invalidated, the NCAA could choose to punish the school more severely.

Anthony Lubrano, a Penn State trustee who is a plaintiff, said he considered these suggestions a veiled threat. Mr. Lubrano was one of several of the plaintiffs who attended Tuesday's proceeding, as well as Mr. Paterno's son, Scott Paterno, and trustee Ryan McCombie. Trustees Barbara Doran and Ted Brown also attended, though they are not party to the suit. Mr. Lubrano expressed satisfaction at the fairness of the hearing and a desire for the lawsuit to move forward.

"The path of least resistance for most is to move on," Mr. Lubrano said. "In my view as a trustee, that would be an inappropriate course of action."

Lawyers for the NCAA declined to comment after the hearing. Wick Sollers, spokesperson for the Paterno family said, "We are optimistic that this case will proceed and that we will be able to present our full case in court down the road."

Mark Dent: mdent@post-gazette.com, 412-439-3791 or on Twitter @mdent05. First Published October 29, 2013 6:09 PM

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