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)