Pennsylvania Governor Tom Corbett filed suit recently in federal court seeking to overturn sanctions imposed by the National Collegiate Athletic Association (NCAA) against Penn State’s football program. The lawsuit essentially argues that the NCAA has violated federal anti-trust laws that the NCAA and its member institutions conspired to punish and embarrass Penn State (and by extension the state of Pennsylvania) on grounds that are outside the NCAA’s regulatory authority.
NCAA-member schools compete against each other on the field and in recruiting. The “violations” in Penn State’s case involved criminal activities by a former assistant football coach, Jerry Sandusky, and allegations about improper behavior by various school officials, including former football coach Joe Paterno. Viewed in one light, Corbett is arguing in the suit filed on Jan. 2 that the NCAA took advantage of a situation primarily involving one former employee and sought to embarrass and punish the entire Penn State football program.
There has already been much discussion about the need to find a way to bring about judicial review of the NCAA’s seemingly endless power to punish member schools as it sees fit. The problem with the lawsuit is that it does not fit neatly into any conceptual boxes. Most lawsuits filed against the NCAA over the years have been filed by athletes, coaches or schools seeking to redress a distinctly “sports” issue. These issues have included coaches suing over an NCAA attempt to control costs by limiting the salaries earned by one assistant basketball coach, an athlete seeking to have communications between himself and his agent protected on privacy and free speech issues, a coach challenging the NCAA over its interpretation of recruiting violation, and schools challenging the NCAA’s attempts to control the broadcast of college football games.
The current “hot button” legal issue is the question of whether the NCAA must legally pay former athletes licensing fees for the use of their images. This case was originally field by former UCLA basketball star Ed O’Bannon and is currently in the discovery phase.
Plaintiffs have been successful in some of these cases. All of these cases, however, had a clear connection between the actions of the NCAA being challenged and sporting events. The sport nexus between the NCAA and its punishment of Penn State is harder to find. It was acknowledged by both sides in the consent decree that “the circumstances involved in the Penn State matter are . . . unlike any matter encountered by the NCAA in the past.” The reason for this is that punishing a school and its student-athletes for failing to prevent an ex-coach from sexually abusing young boys does not clearly fit under the NCAA’s scope of review.
The argument might come down to the idea of whether or not what happened at Penn State caused any kind of competitive imbalance. It is clear that when an ineligible player competes because a grade was changed that a school gains a competitive advantage. It is likewise clear that a school’s football team benefits when a running back plays because he is being paid large sums of money by a school booster.
The pertinent question to be asked here is whether or not Penn State kept a competitive advantage by not dealing with allegations against Mr. Sandusky. Did the efforts of certain representatives help ensure that the Nittany Lions football team performed at a higher level than it might have had these allegations become known sooner?
The real legal question, however, must be addressed before even looking at substantive arguments. The NCAA is an “association” of schools divided into three divisions for governing purposes. These divisions are based upon how competitive a school wants to be in athletics. Its members are in reality a “confederation” of entities that have agreed to be bound by certain competitive rules.
When the NCAA was first formed in 1906 in response to political pressure from President Theodore Roosevelt, its membership wanted primarily to put into place uniform playing rules and ensure participants’ physical safety while playing football and other rough sports.
In the case at hand, the NCAA recognized the unusual circumstances of the facts involved and used a “consent decree” to impose its ruling and penalties. Legally, officials at the school agreed in writing to accept the penalties and to not challenge the NCAA in court. Gov. Corbett was not a party to this consent agreement. He is not a Penn State school official and has no direct connection to the school’s athletic program.
The governor may argue that as the chief executive officer in the state, he is the person responsible for looking after tax monies that go to Penn State and its athletic programs. State residents pay taxes that are used to support the school’s programs. The governor and the state attorney general are charged with representing the state when its citizens’ best interests are being contested.
Gov. Corbett is not an employee of Penn State University. He is not a contract employee of the school. He has no legal authority over the school’s athletic teams or the coaches of those teams. In fact, Penn State’s athletic department is largely financially independent from the school. Athletic department officials rarely have to obtain clearance from the governor or legislature before pursuing policies.
In addition, it seems unlikely that the governor can prove that the NCAA penalties imposed against the school will have material impact on any division or program operated by the school other than on its football program. The governor has no direct or indirect authority over the football program. Thus, it would seem that the governor has no legal standing to contest any action taken by the NCAA against the Penn State football program. This is particularly true since the officials in charge of the school agreed contractually to the terms of the consent agreement this past summer and signed the agreement knowing how it was likely to impact the school’s football program.
Many people believe that the football team’s record will be worse in 2013-2015 because of the stiff sanctions levied against it. Nevertheless, school officials in charge of the football program chose not to fight the NCAA in a hearing and agreed to the proposed penalties against the school. It would seem unfair to intervene now because of actions taken by the governor in his election campaign, when many people feel he did not push for a quicker grand jury investigation because of the possible political impact. By the same token, it seems a stretch to argue that the governor, or any duly elected state official, has the legal authority to file a lawsuit against a private entity whose members all agree to abide by its rules and decisions.
Legal critics need to carefully look at this case before uttering opinions. It is entirely possible, for example, that a school president found to have misappropriated funds from a university general fund might not be a reason to fire the school athletic director. The same logic would seem to apply here. Athletic department officials, who were in the best position to know all of the facts in this case, agreed to the penalties being imposed by the NCAA. Those officials did not have the authority or power to speak for the state’s governor; but, their actions were approved by the Board of Trustees. What legal authority gives the state governor the power to step in now and file a federal lawsuit? Why should the governor have the power to in effect seek to undo what the people charged with athletic oversight at Penn State chose to approve?
The NCAA has had some victories in the past in anti-trust cases. Here, however, it appears that it is a stretch to argue that the NCAA is even subject to being sued by private individuals not working with or for a member school in any capacity.
Perhaps Governor Corbett is hoping that the intimidation factor may work here. The State of Pennsylvania has the resources to pursue this lawsuit for a long time. Does the NCAA, at its corporate office level, have the same kind of financial resources? Does its membership want a protracted legal battle in this matter? If not, then perhaps the idea is to simply tie things up in court until the NCAA decides that a compromise settlement is a sounder strategy to implement.
Greg Tyler is the Library Director at the United States Sports Academy. He has also taught courses at the Academy in sports law. He worked for years in youth sports as a coach, league administrator and as a soccer referee. He has a law degree and practiced law for a number of years.