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Gov. Tom Corbett's lawsuit against the NCAA argues that the NCAA ignored its own rules and exacted penalties based on conduct over which it had no jurisdiction. The NCAA's action resembles extortion: exploiting all the lurid publicity and Penn State's extreme vulnerability, the NCAA threatened the "death penalty" and thereby coerced the $60 million "consent decree."
The "consent decree" itself acknowledges that the NCAA overstepped its bounds: "[T]he NCAA recognizes that the circumstances are ... unlike any matter encountered by the NCAA in the past. ..." The NCAA admits that authority for the sanctions was lacking: "[T]he sexual abuse of children on a university campus by a former university official -- and even the active concealment of that abuse -- while despicable, ordinarily would not be actionable by the NCAA."
The president of Penn State described the pressure he was under to accept the terms dictated by the NCAA as follows: "It was clear that the NCAA was not interested in negotiating the terms of the consent decree. It was a take-it-or-leave-it proposition." Moreover, the agreement forced Penn State to waive its rights both to NCAA due process and to any recourse to judicial process.
If a gun were pointed at a party's head during negotiations, you might suspect that the deal was not an arm's-length transaction, and the law would regard the contract as voidable. And if the party with the weapon had no power under its rules to impose such an agreement, would that not convince you that the contract could be ignored? Now that the media feeding frenzy has abated, Penn State should reconsider its willingness to accept a penalty that should not have been imposed in the first place.
Gov. Corbett's lawsuit may not result in a victory (the antitrust theory seems weak), but it has the merit of focusing attention on the indefensible actions of the NCAA.
First Published January 12, 2013 12:00 am