Paterno family officially files suit against the NCAA


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UNIVERSITY PARK, Pa. -- The family of Joe Paterno and other plaintiffs sued the NCAA Thursday, accusing the organization of intentionally defaming and commercially disparaging them through the imposition of sanctions against Penn State.

The lawsuit, filed in Centre County Common Pleas Court, names the NCAA, NCAA president Mark Emmert and the organization's former executive committee chairman, Ed Ray, as defendants. The plaintiffs seek a permanent injunction preventing the NCAA from further enforcing the sanctions, a declaration that the NCAA's actions and the consent decree it entered into with the university were unfair, and compensatory and punitive damages.

In addition to the Paterno family, plaintiffs include Penn State trustees Anthony Lubrano, Ryan McCombie and Adam Taliaferro, former assistant football coach Bill Kenney, former players such as Michael Robinson and Gerald Cadogan, and several Penn State faculty members.

The NCAA sanctions stem from the child sexual abuse case of former assistant football coach Jerry Sandusky. Paterno and university president Graham Spanier were fired in November 2011 after charges were brought against Sandusky and questions arose about how the university handled a past allegation against Sandusky.

The NCAA levied sanctions against Penn State in July, immediately after university president Rodney Erickson signed the binding consent decree with the NCAA. Usually the NCAA follows a process in which it initiates its own investigation and allows for an appeals process. This Penn State case also marked the first time the NCAA punished an institution solely for transgressions related to a criminal matter.

Arguing that the NCAA bypassed its usual protocol -- using a report gathered under the direction of former FBI director Louis Freeh rather than their own independent investigation -- and extended the scope of its jurisdiction, the plaintiffs claim they were harmed by these actions.

The lawsuit presents six specific counts against the NCAA: two breach of contract counts related to punishment "over a matter not caused by the football program," intentional interference regarding Kenney's and former assistant coach Jay Paterno's ability to be employed, commercial disparagement of the Paterno estate through monetary losses because of the NCAA's actions, defamation against the Penn State community and civil conspiracy for the general process the NCAA took to enact the sanctions, including a claim that the NCAA worked closely with Freeh's investigative team and unfairly threatened Penn State.

In detailing the damages to the plaintiffs, the suit states that "Joe Paterno suffered damage to his good name and reputation, resulting in irreparable and substantial pecuniary harm to the current and long-term value of his estate." It also claims that Kenney and Jay Paterno, Paterno's son, have been unable to get jobs as football coaches because of reputational damage, and that the vacating of 111 Penn State victories from 1998-2011 hurt the reputations of the former football players, damaging their professional careers "in football and other fields."

Michael McCann, the director of the Sports and Entertainment Law Institute at the University of New Hampshire, said the biggest obstacle to the plaintiffs' success will be their need to prove standing. He said the plaintiffs need to show their association with Penn State is sufficient enough to bring a claim that the university has not brought itself.

If they establish standing, McCann said, the plaintiffs then must prove that the NCAA breached its membership agreement. That task will be difficult because the Supreme Court ruled in 1988 that the NCAA does not have to follow due process.

"It's not impossible," McCann said. "I think in the claim there are real reasons to wonder if the NCAA acted properly. I just don't know if they are the right group."

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Mark Dent: mdent@post-gazette.com, 412-439-3791 and on Twitter: @mdent05. First Published May 30, 2013 6:00 PM


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