Pennsylvania suit against NCAA a long shot: experts

Wed Jan 2, 2013 6:55pm EST

1 of 11. Pennsylvania Governor Tom Corbett speaks at a news conference on the Penn State campus in State College, Pennsylvania January 2, 2013. Corbett said he will file a federal lawsuit against the NCAA over sanctions it levied against Pennsylvania State University in the wake of the Jerry Sandusky child sex-abuse scandal. Over three dozen local and state officals along with Penn State students and former Penn State players took part in the news conference.

Credit: Reuters/Craig Houtz

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(Reuters) - Pennsylvania Governor Tom Corbett faces serious obstacles to winning his antitrust lawsuit against the NCAA over the harsh sanctions it imposed on Penn State in the Jerry Sandusky child sex-abuse scandal, legal experts said on Wednesday.

While targeting the National Collegiate Athletic Association may be popular politically in a state where Penn State football is widely loved, the federal court handling the case might rule that the state lacks standing to bring the lawsuit in the first place, experts said.

Moreover, the state of Pennsylvania must demonstrate the NCAA penalties harmed consumers and constituted a breakdown in the competitive marketplace.

"It's not a frivolous lawsuit - there are real arguments to make - but, boy, is it weak," said Max Kennerly, a lawyer with the Beasley Firm in Philadelphia who has been following the case closely.

The sanctions the NCAA imposed on Penn State in July included an unprecedented $60 million fine and the voiding of all of the football team's victories over the past 14 seasons.

Corbett's lawsuit was distinct in that, unlike the university, the state of Pennsylvania was not a party directly affected by the sanctions. Instead, Corbett brought the suit on behalf of third parties such as stadium workers, shopkeepers, hoteliers and others whose businesses were disturbed because of the NCAA's penalties.

The obstacle Corbett faced was "converting what may be real and perhaps significant harm" to Penn State students and athletes and local businesses into an antitrust violation, said Gabriel Feldman, a professor at Tulane University Law School.

"This is an extremely uphill battle for Pennsylvania," Feldman said.

The NCAA has been sued on antitrust grounds fewer than 10 times over the past five years, estimated Matt Millen, a professor at Marquette University Law School and director of the National Sports Law Institute. Most of those cases were settled or dismissed because courts often defer to the NCAA when it comes to matters of rules and enforcement actions, Millen said.

Past antitrust suits against the NCAA that have been successful tend to involve operations such as marketing and licensing because the body has "a stranglehold" over those spheres, Kennerly said.

The Supreme Court ruled in the 1984 case of NCAA v. Board of Regents of the University of Oklahoma that the NCAA's policies on television broadcast rights to college football games violated federal antitrust laws. Former UCLA basketball player Ed O'Bannon led a class-action suit against the NCAA in 2009 that is still pending over the use of student-athletes' images and likenesses without compensation.

In contrast, antitrust lawsuits over NCAA sanctions have been less successful in court. In the 1988 case of NCAA v. Tarkanian, the Supreme Court ruled the NCAA was a private entity not obligated to abide by due process considerations when it hands down sanctions, Kennerly said.

(Editing by Daniel Trotta and Steve Orlofsky)

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Comments (15)
Penn State got what they deserved!!! With NOT taking the steps to protect the children and covering this up for the greater good of football, now the Governor is taking steps to try and strip the punishment Penn State received.
Just tells me he is siding with the monsters that hurt these children and relieve the consequences Penn State deserves!!!!

Jan 02, 2013 2:20pm EST  --  Report as abuse
JohnMcClane wrote:
Wow, how soon they forget. Not ONE WORD about the victims that were preyed upon, with free reign, by the SECOND IN CHARGE of this “once great football program”.

Here’s yet another ahole politician, more than willing to make a fool of himself for the sake of the publicity. Where are all of the affected “businesses”? Why aren’t they filing suit against the NCAA? The NCAA should have KILLED their football program. They should not be allowed to participate in ANY sports as a school. I, for one, can’t wait for the upcoming trials in this case, the AD and the head of the school. I can’t wait for them to try to explain away the content of the myriad of emails contained in the Freeh report. This is gonna be some good stuff!

Jan 02, 2013 2:21pm EST  --  Report as abuse
xyzx wrote:
How tone deaf is this governor? Absolutely unbelievable. The NCAA should ban Penn State from all sports for twenty years for this. That’s what they REALLY deserve for what they did to these children. Truly disgusting that this governor doesn’t get it.

Jan 02, 2013 2:31pm EST  --  Report as abuse
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