Like the NCAA sanctions levied against Penn State University, the lawsuit Gov. Tom Corbett filed against the NCAA on Wednesday presents a case without precedent, and the result could alter or clarify the organization's punitive powers.
"If this gets past dismissal it really opens the door to questioning the scope of NCAA authority," said Michael McCann, director of the Sports Law Institute at Vermont Law School.
The lawsuit accuses the NCAA of punishing Penn State for conduct not specified under its constitution in a way that disregarded its standard protocol for enforcement. It suggests the punishment has prohibited the Penn State football program's ability to compete and has harmed Pennsylvania citizens who benefit economically from the football program.
Mr. McCann said the chief obstacle for the commonwealth would be to establish that it has the standing as a viable third party affected by the sanctions.
The NCAA has faced many lawsuits before, including antitrust suits. The Indianapolis Star reported that the NCAA spent $84 million in legal fees from 1995 to 2009. Right now the organization is contesting a potential billion-dollar lawsuit from former UCLA basketball player Ed O'Bannon, who contends the NCAA uses the names, images and likenesses of current and former athletes without receiving their permission and without paying them.
Like the O'Bannon case, the majority of lawsuits against the NCAA have dealt with amateurism and questions of whether the NCAA restricted institutions' or individuals' ability to make money. They generally have not attacked the authority of the NCAA like this lawsuit does.
The most famous case challenging the authority of the NCAA's disciplinary process was the NCAA v. Tarkanian, in which former University of Nevada-Las Vegas basketball coach Jerry Tarkanian argued that the NCAA's suggestion to UNLV to suspend him for NCAA violations deprived him of his due process rights. In 1988, after a prolonged legal battle lasting several years, the Supreme Court ruled that the NCAA was not a "state actor," a person or entity acting on behalf of the government, and did not have to adhere to due process that would force an entity to share information with and hold a hearing for an individual it planned to fire or suspend.
In July, the NCAA said in a statement that it had authority to act against Penn State based on Article 4.1.2 (e) of its constitution, which allows the NCAA executive committee, made up of 20 individuals including the NCAA president and select university presidents, to "act on behalf of the association by adopting and implementing policies to resolve core issues and other Association-wide matters." The Pennsylvania lawsuit accuses the NCAA's use of the consent decree as eliminating its routine actions for discipline.
"If there is a due process claim -- if there is a claim that the NCAA didn't honor due process because it didn't follow its usual procedures -- that's going to be a hard one to win," said Brian Porto, a professor at Vermont Law School and author of "The Supreme Court and The NCAA." "At least based on the Tarkanian case, it isn't a state actor."
Michael L. Buckner, whose Florida law firm has represented universities in many NCAA enforcement cases, said the NCAA's lack of "state actor" status could be challenged based on the way it has proceeded in this case: punishing an institution for violations related to a criminal matter.
"With this decision they are now acting more and more like a state actor, an entity that regulates beyond state lines, and has gone beyond the powers it has once bestowed upon itself," he said.
The lawsuit also accuses the NCAA of unfairly punishing Penn State because its infractions were not concrete and did not relate to a set of violations specified in the organization's constitution.
In the consent decree, the NCAA stated that Penn State failed to uphold standards of integrity and responsible conduct detailed in its constitutional bylaws.
Before the penalties, opinion was split between experts in the sports law community as to whether the NCAA could extend these bylaws and articles to the Penn State scandal. Gene Marsh -- a former NCAA infractions committee chair and lawyer for Lightfoot, Franklin & White -- said in July the NCAA did not generally pursue similar "untoward human behavior." Mr. Marsh was later employed by Penn State as counsel for dealing with the consent decree negotiations. He declined to comment on the Pennsylvania lawsuit.
Past lawsuits against the NCAA have taken years to conclude. Mr. Tarkanian's case lasted more than a decade. Mr. O'Bannon's case started in 2009 and is still in the discovery stages with no trial date set. Mr. McCann said this case could last for years if no settlement is reached.
Should both sides push this issue, the legal battle could have lasting implications.
"This is a big deal," Mr. McCann said. "This isn't a player or coach with limited resources challenging the massive NCAA. This is a commonwealth. This is a legitimate plaintiff that has deep resources."state - psusports
Mark Dent: email@example.com, Twitter @mdent05.