Pennsylvania suit against NCAA a long shot, experts say

Thu Jan 3, 2013 10:53am 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 Mitten, 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, Mitten 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)

(This story corrects the spelling of law professor's surname in the ninth paragraph to Mitten from Millen)

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Comments (6)
cyke1 wrote:
SO the college gets off Scott free when they covered up for his crimes? Its sad for local economy but maybe the college should pay for that as well since they are ones they tried to hide what happened.

Jan 02, 2013 8:19pm EST  --  Report as abuse
scottabc wrote:
Speaking as a Pennsylvanian, I’m disgusted by this. Unfortunately, this isnt the first time Ive been disgusted by Corbett. Among other things, he’s been able to hide and obfuscate the fact that while he was Attorney General (before becoming Gov) he failed to adequately investigate Penn St and halt the travesty going on there. Corbett is a big part of the problem, has deep ties to Penn St and actually shares much of the blame for the scandal itself but business always come first for him.

Jan 02, 2013 8:45pm EST  --  Report as abuse
SNAPJudyJones wrote:
quoted by Gov. Tom Corbett : “Do sanctions alter history books on Penn State?”

YES. It helps to deter other institutions from enabling, empowering, and covering up sex crimes against innocent children. Corbett’s action is very hurtful to the victims of Sandusky and all sex abuse victims, They do not deserve to be dismissed and harmed anymore.

Judy Jones, SNAP Midwest Associate Director, USA, 636-433-2511.,
“SNAP (The Survivors Network of those Abused by Priests) is the world’s oldest and largest support group for clergy abuse victims. SNAP was founded in 1988 and has more than 12,000 members. Despite the word priest in our title, we have members who were molested by religious figures of all denominations, including nuns, rabbis, bishops, teachers, Protestant ministers and increasingly, victims who were assaulted in a wide range of institutional settings like orphanages, summer camps, athletic programs, Boy Scouts, etc.”

Jan 02, 2013 9:09pm EST  --  Report as abuse
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