Judge ponders NCAA, Paterno family arguments

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BELLEFONTE, Pa. -- NCAA attorneys Monday argued that the Paterno family has no standing to challenge sanctions levied against Penn State University in the wake of the Jerry Sandusky child sex abuse scandal and acknowledged the so-called "death penalty" was one possible outcome had the school not accepted a consent decree for sanctions in 2012.

Attorneys for the family of the late former Penn State football coach Joe Paterno argued that their clients have the right to intervene in the case because they are third-party beneficiaries according to the constitution and bylaws of the National Collegiate Athletic Association, which allow for the consent decree.

Senior Judge John Leete of Potter County didn't issue a ruling about the case at the end of a nearly four-hour hearing but said he would make a decision regarding if and how the lawsuit would proceed at an unspecified date.

The suit has been winding slowly through courts since last May with heated rhetoric from both sides and mounds of filings.

Monday's hearing also focused on a proposed subpoena the Paterno family is seeking for the release of documents related to the Freeh Report, which was commissioned by Penn State trustees and was the basis for the NCAA's consent decree.

Donna Doblick, one of the attorneys representing the university, said Penn State did not object to turning over the requested documents but wanted the Paterno counsel to refine the search terms, considering the Freeh group used 3.5 million documents for research.

"Let us review documents for relevancy and privilege and then engage in discovery," Ms. Doblick said.

The NCAA, which has asked that the case be dismissed, further argued Monday that Penn State did not face extreme duress with regard to accepting the consent decree.

NCAA lawyer Everett Johnson said "extreme duress" would mean Penn State had no choices at all, when in reality, he said, Penn State was faced with bad choices and still had free will. He was referring to a choice between accepting the sanctions or facing a prolonged investigation and possible harsher penalties from the NCAA. Mr. Johnson acknowledged that one possible outcome would be a death penalty.

The "death penalty" is the popular term for the NCAA's power to ban a school from competing in a sport for at least one year. It is the harshest penalty that an NCAA member school can receive. It has been implemented only five times.

Reacting to the NCAA's objections, Paterno attorney Joseph Loveland categorized the duress Penn State was under from the NCAA as, "They said to Penn State, 'We've got a gun to your head and we'll pull the trigger unless you do what we want you to do.' "

"They might not play football on Saturday," Mr. Johnson said. "That's not a gun to the head. That's simply not playing a football game on a Saturday."

After the hearing, Mr. Loveland said, "We think the NCAA created a completely untenable situation for Penn State and forced Penn State to make a bad decision under threat of the death penalty."

He continued, "We strongly disagree that it was just football on a Saturday morning. This whole matter goes to the heart and soul of the university community."

Mark Dent: mdent@post-gazette.com, 412-439-3791 or on Twitter @mdent05.

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