Commonwealth of Pennsylvania vs. NCAA

[MentalDisabldLst]

I have no particular love for Penn State, Paterno or any of the plaintiffs.  I just loathe the NCAA and view them as morally equivalent to slave traders, and welcome all opportunities to bring about their messy ruin.  So at least I'm consistent with what I posted early on in this thread.
 
Just, you know, while we're confessing our biases and all.
 
 

Yes, I've read the (really, really weak) Complaint.
 
I was asking you whose reputation you think this suit is motivated to protect. You really think somebody believes this suit is going to redeem PSU's reputation? The complaint's main gripe is with the findings of Freeh report, which was commissioned by the Penn State Board of Trustees.
 
This suit is quite literally worthless for everyone except the lawyers.

 
OK.  You're a lawyer and I'm not.  Let's see if you're right.  If you're right that this is weak, it'll get tossed by summary judgment, and if it's worthless except for the lawyers, then the parties funding it will drop it rather than pay for appeal, or cave as soon as a piddling settlement offer comes in the door, right?  Let's get a wager for the jimmy fund in here - I'm a sucker, since I don't know how to set the odds on this one.
 
I think this suit is about what it says it's about: that the NCAA "tortiously interfered with Plaintiffs’ contractual relations, and defamed and commercially disparaged Plaintiffs".  Scroll down in the Complaint to paragraph 103 if you want to hear the details about what interests they're claiming here.
 
 
 

 
103. Other substantial harms suffered by Plaintiffs as a result of Defendants’ conduct include, among many other things, the following: 
 

    a. Joe Paterno suffered damage to his good name and reputation, resulting in irreparable and substantial pecuniary harm to the current and long-term value of his estate and causing other substantial harms to his family and estate. 
    b. William Kenney and Jay Paterno have suffered damage to their reputation and standing as football coaches, and have been unable to secure comparable employment despite their qualifications and the existence of employers who would otherwise be willing to hire them. 
    c. The Members of the Board of Trustees, as fiduciaries of the University, are responsible for the governance and the welfare of the institution. They have been rendered unable to fully carry out their administrative and other functions in managing and governing the University because of the NCAA’s interference, and have suffered substantial injuries due to a negative impact on Penn State’s budget and the University’s ability to attract high-caliber students and faculty, whether associated with the football program or not.
   d. The considerable achievements of the former student athletes have been wiped out by the NCAA’s unjustified and unlawful sanctions, which vacated all of Penn State’s wins during the athletes’ careers. This has injured their reputations, negatively affecting their professional careers in football and in other fields. 
   e. Current members of the faculty have been injured by the Consent Decree’s disparaging statements about the entire Penn State community, as well as the decree’s punitive measures, which have diminished the resources available to fund grants, departments, and programs. The Consent Decree has interfered with the administration of Penn State, and limited 
the faculty’s ability to attract and retain high-caliber faculty, administrators, staff, and students, which has reduced the value of the faculty’s own positions and their ability to compete within their fields. 

 
 
I'm not sure how they'd show actual damages and I doubt that, even if shown, they'd be substantial enough to merit a significant judgment.  So I'm offering my opinion that this is more about clearing the name of Penn State (and thus indirectly all of the above, A-E) and sticking it to the organization who has stuck it to them.
 
Perhaps the long game here is to use a court judgment to go after the NCAA more broadly as an abusive monopolist.

 

[WayBackVazquez]

Sollers is a good attorney, but not exactly a heavyweight. These are friends of the family doing what they can do, but the claims are just seriously weak, especially in a fact-pleading state like PA. 
 
The breach of contract claims are going to get dumped on standing/privity; intentional interference is going to get dumped because bald claims that defendants knew their actions would interfere with plantiffs' future employment, and did it for that purpose don't cut the pleading mustard; the injurious falsehood/defamation claims get dumped because (1) the NCAA didn't make any statements, the Freeh report did, (2) they haven't pled any specific false statements, they look like generalities/opinions, and (3) they haven't pled whom exactly the false statements were made about, and why they were recklessly made; and the civil conspiracy claim is going to get dumped because after ll the other claims get dropped, they have no unlawful acts.

 

[SoxJox]

Well, we could put 100 lawyers in a room and they would come up with 100! potential avenues of approach.  That is 

9.3326215444×10157
 
I think the proceedings will be entertaining in any case, again because I don't believe the NCAA has been attacked on this many fronts in any previous case.
 
Certainly the "breach of contract" is a somewhat novel challenge with which the NCAA has never been confronted as far as I can tell.

 

[WayBackVazquez]

Well, we could put 100 lawyers in a room and they would come up with 100! potential avenues of approach.  That is 

9.3326215444×10157

I'm not sure what you mean by that. I assure you that any lawyer the NCAA retains will file a motion to dismiss (I would assume it will first attempt to remove to federal court, but not sure how diversity jurisdiction will play out here). And that motion to dismiss will be for lack of standing and failure to state a claim (or the PA equivalent). About three out of every four MTDs that get decided are granted (in federal court; most state courts have similar ratios). This case is more than likely DOA, and I expect you'll get very little entertainment from it.

 

[MentalDisabldLst]

Lester Munson, who is not a horror-movie character but in fact ESPN's legal analyst, writes a detailed rebuttal to this new lawsuit.
 
Seriously though: "Lester Munson".  Only Maalox could do that name justice.

 

[WayBackVazquez]

Munson is probably the worst legal analyst working in major media today. His Barry Bonds trial analysis was from another planet. Give it a couple of days; the law professor blogs will have plenty of reasonable handicapping of this case.

Some reading about Lester and Barry:

http://www.hangingsliders.com/2011/04/14/lester-munsons-legal-analysis-of-the-barry-bonds-verdict-is-anything-but/

http://hardballtalk.nbcsports.com/2011/12/19/meanwhile-in-an-alternate-universe-where-the-barry-bonds-prosecution-was-a-triumph-for-the-prosecution/

He was also totally off the wall in the Duke Lacrosse case. Read about his treatment of that case, as well as his legal background (ambulance chaser forced out of the legal profession in disgrace):

http://liestoppers.blogspot.com/2007/03/lester-munson-legal-expert.html

http://articles.chicagotribune.com/1991-04-17/news/9102040136_1_settlement-check-lawyer-disciplinary-supreme-court

 

[WayBackVazquez]

 OK.  You're a lawyer and I'm not.  Let's see if you're right.  If you're right that this is weak, it'll get tossed by summary judgment, and if it's worthless except for the lawyers, then the parties funding it will drop it rather than pay for appeal, or cave as soon as a piddling settlement offer comes in the door, right?  Let's get a wager for the jimmy fund in here - I'm a sucker, since I don't know how to set the odds on this one.

Just saw this edit. You name the amount. This case will never go to trial.

 

[SoxJox]

I'm not sure what you mean by that. I assure you that any lawyer the NCAA retains will file a motion to dismiss (I would assume it will first attempt to remove to federal court, but not sure how diversity jurisdiction will play out here). And that motion to dismiss will be for lack of standing and failure to state a claim (or the PA equivalent). About three out of every four MTDs that get decided are granted (in federal court; most state courts have similar ratios). This case is more than likely DOA, and I expect you'll get very little entertainment from it.

It was tongue in cheek.  Not saying any of the arguments would be successful.  Just that any number of lawyers can look at a set of facts and ATTEMPT to apply the law in a myriad of ways.

 

[MentalDisabldLst]

Just saw this edit. You name the amount. This case will never go to trial.

 
Let's do an easy $25 to the jimmy fund, you pay if the trial goes to discovery, I pay if it's tossed or settled before then?

 

[WayBackVazquez]

What do you mean if it goes to discovery? The parties can serve discovery right now if they like.

 

[bowiac]

I have no idea on the legal credibility of this but the moral component of this appeal is gross.  "This was a massive criminal conspiracy, not a recruiting violation, so we should suffer no NCAA consequences" is not real compelling.
 
Seriously, under their logic if Joe Paterno was running a hit squad out of the locker room with the knowledge of the school, the NCAA would be unable to sanction the program.

For what it's worth, I don't see why it's not compelling, but people tend to be pretty intractable on this issue. About half the people I've polled agree the NCAA shouldn't have anything to do with this (or a hit squad), while others disagree.
 
As for the suit, I tend to think it would survive a motion to dismiss. I don't know how they're going to prove those things, but it's not out of the realm of possibility that they could. It seems sufficiently pled for federal court at least (no idea how strict PA pleadings are).

 

[canderson]

This suit was just rejected by the federal judge.
 
Edit: No links anywhere yet, but it'll be online somewhere soon probably. They'll announce it momentarily.

 

[SoxJox]

Here's a link, oddly enough from the Denver Post.
 
"'The fact that Penn State will offer fewer scholarships over a period of four years does not plausibly support its allegation that the reduction of scholarships at Penn State will result in a market-wide anticompetitive effect, such that the 'nation's top scholastic football players' would be unable to obtain a scholarship in the nationwide market for Division I football players,' Kane wrote.
 
"She said the questions the case raises are important matters of public debate but are not anti-trust grounds.
 
'"In another forum the complaint's appeal to equity and common sense may win the day, but in the antitrust world these arguments fail to advance the ball,' Kane said."
 
 
Edit: BTW, this is the same judge before which the Paterno, et. al, lawsuit vs. NCAA is being heard.
 
Edit: The AP reporter put that first statement in quotes, but I wonder if it is an accurate quote because the way it's worded makes it sound like Penn State brought the suit, which it did not.  Instead, it should have been worded: "The fact that Penn State will offer fewer scholarships over a period of four years does not plausibly support the State's (or Plaintiff's) allegation..."
 

 

[WayBackVazquez]

 
As for the suit, I tend to think it would survive a motion to dismiss. I don't know how they're going to prove those things, but it's not out of the realm of possibility that they could. It seems sufficiently pled for federal court at least (no idea how strict PA pleadings are).

You must realize "not out of the realm of possibility" is not the federal pleading standard, right? Your standard is equivalent to pleading enough facts that a claim is "conceivable," rather than "plausible." So can you expand on why you think this complaint will survive an MTD? You must know all of the elements to each of these claims, right? What are the elements for proving breach of contract in PA for a non-signatory? And if they include the intention of the parties to give benefit of the agreement to third-parties, do you think it's enough to plead, "the NCAA and PSU intended to give benefit of their agreement to third parties uninvolved in rules findings but directly affected"? Sounds like a threadbare recitation of elements to me. I'm not even sure this complaint has sufficiently pleaded the existence of a contract.

 

[WayBackVazquez]

 
 
Edit: BTW, this is the same judge before which the Paterno, et. al, lawsuit vs. NCAA is being heard.
 

Where'd you get that? The Paterno suit was filed in state court. I haven't heard about it being removed.

 

[Average Reds]

The hearing on the NCAA's Motion to Dismiss was held last week. I've read the briefs and from where I'm sitting, Corbett's getting brutalized, and I expect this suit to get dismissed with prejudice. A Cliff's Notes version of the NCAA's arguments (its hearing powerpoint presentation) is here.

 
WayBackVazquez for the win...
 
http://www.myfoxphilly.com/story/22516762/penn-state-trustees-say-changes-are-well-under-way
 
Edit:  I guess I'm really late with this. Still a good call WBV

 

[SoxJox]

BTW, I didn;t see it posted anywhere, but here is the NCAA' [original] Motion to Dismiss

 

[SoxJox]

Where'd you get that? The Paterno suit was filed in state court. I haven't heard about it being removed.

I improperly stated that as fact, when it is only speculation that it will eventually be removed and, if so, she likely wold be the judge hearing the case.
 
I regret reporting it in the manner that I did.  I usually double check my references and sources, but was lazy in this case.

 

[WayBackVazquez]

BTW, I didn;t see it posted anywhere, but here is the NCAA' [original] Motion to Dismiss

 
That's the MTD the Corman suit (PA legislator's state court suit over the $60mm fine).

 

[WayBackVazquez]

I improperly stated that as fact, when it is only speculation that it will eventually be removed and, if so, she likely wold be the judge hearing the case.

 
Okay, but what are you basing that on? The middle district of PA randomly assigns judges. Courts will often make exceptions when there are multiple cases of a similar or technical nature pending (think non-class action asbestos plaintiffs or RMBS lawsuits) but I'm not sure the fact that there was a prior case concerning the same set of general facts (but bringing different types of claims) would qualify. 

 

[WayBackVazquez]

Edit: The AP reporter put that first statement in quotes, but I wonder if it is an accurate quote because the way it's worded makes it sound like Penn State brought the suit, which it did not.  Instead, it should have been worded: "The fact that Penn State will offer fewer scholarships over a period of four years does not plausibly support the State's (or Plaintiff's) allegation..."
 

 
It's an accurate quote. It's admittedly not a well-written sentence in the opinion, but the court was referring to "Plaintiff" with "it."

 

[SoxJox]

Okay, but what are you basing that on? The middle district of PA randomly assigns judges. Courts will often make exceptions when there are multiple cases of a similar or technical nature pending (think non-class action asbestos plaintiffs or RMBS lawsuits) but I'm not sure the fact that there was a prior case concerning the same set of general facts (but bringing different types of claims) would qualify. 

I was relating it based on comments by a friend who is a practicing attorney in PA and who is familiar with the case.  His reasoning matched exactly what you stated: that she likely would get the Paterno case based on here familiarity with the Corbett case. I'm not familiar will PA case assignment processes, and trusted my friend's comment.  Lesson learned.
 
I guess we'll have to wait and see, and in the meantime I will keep my mouth shut until I have a more authoritative source, as I should have done in the first instance.

 

[SoxJox]

That's the MTD the Corman suit (PA legislator's state court suit over the $60mm fine).

I'm bald, so I can't claim to be having a bad hair day.  I'm down 0-2 in the count.
 
I picked the wrong link.  Here it is.

 

[SoxJox]

And here is Judge Yvette Kane's ruling.
 
Edit:
 
There are some entertaining flourishes in the writing style, given the underlying subject of football, such as:
 
“In an all-out blitz, Defendant attacks every aspect of the complaint as bereft of the essential elements of an antitrust claim.”
 
“Each of Defendant’s arguments is strong enough to render the Governor’s action under antitrust law a Hail Mary pass.”
 
“The Governor’s complaint implicates the extraordinary power of a non-governmental entity to dictate the course of an iconic public institution, and raises serious questions about the indirect economic impact of NCAA sanctions on innocent parties. These are important questions deserving of public debate, but they are not antitrust questions. In another forum the complaint’s appeal to equity and common sense may win the day, but in the antitrust world these arguments fail to advance the ball.”
 
I was waiting for her to add something like: "and for these reasons, the Governor has effectively been sacked, and the complaint necessarily dismissed."

 

[SoxJox]

A contrary view to yesterday's ruling from Marc Edelman.
 
"[t]he U.S. District Court for the Middle District of Pennsylvania yesterday relied on two dubious presumptions to rule in favor of the NCAA without conducting any discovery — even though issuing the ‘death penalty’ would have entirely excluded the Penn State’s football program from the college football marketplace.
 
"The first dubious presumption was that the NCAA is not engaged in 'trade or commerce', as is required for there to be a violation under the antitrust laws.  To support this presumption, the ‘Penn State’ court relied on earlier cases from the Third Circuit that have held the NCAA is not a commercial actor.  For example, the court cited to Smith v. NCAA – a 1998 Third Circuit Court of Appeals case that had dismissed a graduate student’s challenge to the NCAA transfer rules as being non-commercial. In addition, the court cited to Pocono Invitational Sports Camp Inc. v. NCAA – a decision that held an NCAA bylaw that only allowed Division I colleges to evaluate high school basketball players at certified camps to be non-commercial.
 
"Such reliance on these cases, however, was likely misplaced given that the holdings of these two cases seem to squarely conflict with the U.S. Supreme Court’s ruling in Board of Regents v. NCAA, which recognized that the NCAA is indeed a commercial actor.  In addition, these cases fail to recognize that the NCAA today is a several billion dollar enterprise that includes college football teams that produce annual revenues that exceed $100 million – an unmistakable sign of commercial activity.
 
"Similarly, the second dubious presumption relied upon by the court was the notion that the plaintiffs in the ‘Penn State’ case did not allege sufficient facts of a 'contract, combination … or conspiracy' to proceed with an antitrust case.  To the contrary, the court held that the plaintiffs’ mere allegations that NCAA President Mark Emmert threatened Penn State University with the ‘death penalty’ did not constitute concerted action.
 
"Nevertheless, a basic review of antitrust law should have logically led to the opposite conclusion, even though NCAA President Mark Emmert is just one person.  That is because when independent businesses come together to form a trade association, their association-wide decisions are, in themselves, collective action.
 
"To further illustrate that point, the Supreme Court had held in its May 2010 decision in American Needle v. Nat’l Football League that when NFL teams allocate their intellectual property rights to a central entity, the decisions by that central entity are still concerted and thus subject to review under Section One of the Sherman Act."

 

[TheGazelle]

That really glosses over a lot of the District Court's analysis, and seems to overstate the holding of Board of Regents (which, based on the footnote in the opinion, distinguished between non-commercial regulatory controls and restraints on broadcasting football games).  I don't see how you can reach the conclusion that Board of Regents sets forth some sort of immpenetrable rule that the NCAA is a commercial actor all the time, every time.  In fact, the Supreme Court seemed to hold precisely the opposite (again, based on the opinion's footnote; I haven't read the case).  The District Court's holding here just seems like an extension of the logic of Smith, which came thirteen years after Board of Regents.  It is inconceivable to me that the Third Circuit didn't consider a previous Supreme Court case in deciding Smith.

 

[SoxJox]

That really glosses over a lot of the District Court's analysis, and seems to overstate the holding of Board of Regents (which, based on the footnote in the opinion, distinguished between non-commercial regulatory controls and restraints on broadcasting football games).  I don't see how you can reach the conclusion that Board of Regents sets forth some sort of immpenetrable rule that the NCAA is a commercial actor all the time, every time.  In fact, the Supreme Court seemed to hold precisely the opposite (again, based on the opinion's footnote; I haven't read the case).  The District Court's holding here just seems like an extension of the logic of Smith, which came thirteen years after Board of Regents.  It is inconceivable to me that the Third Circuit didn't consider a previous Supreme Court case in deciding Smith.

Agreed.  I thought the analysis was quite thorough.  Although I don't think Edelmen was suggesting that the NCAA is a commercial actor "all the time, every time." I think he was simply saying that it can be considered a commercial actor in some instances.

 

[WayBackVazquez]

A contrary view to yesterday's ruling from Marc Edelman.
 
"Such reliance on these cases, however, was likely misplaced given that the holdings of these two cases seem to squarely conflict with the U.S. Supreme Court’s ruling in Board of Regents v. NCAA, which recognized that the NCAA is indeed a commercial actor.  In addition, these cases fail to recognize that the NCAA today is a several billion dollar enterprise that includes college football teams that produce annual revenues that exceed $100 million – an unmistakable sign of commercial activity.

This is laughably bad analysis. Is he really suggesting that the Chief Judge of the M.D. PA should have decided this motion in disregard of the Third Circuit, because its holding in Smith "squarely conflicts" with a Supreme Court case over a DECADE EARLIER??

Smith recognized that the NCAA sometimes engages is commercial activity (like television contracts). And other circuits have found the same with respect to things like limits on coaches' compensation. But the Third Circuit, which is what matters here, held that it does not do so when enforcing eligibility rules. And the Third Circuit discussed and relied extensively on the Board of Regents decision in Smith.
 
He's the relevant excerpt from the Smith opinion:

 
We agree with these courts that the eligibility rules are not related to the NCAA's commercial or business activities.   Rather than intending to provide the NCAA with a commercial advantage, the eligibility rules primarily seek to ensure fair competition in intercollegiate athletics.   Based upon the Supreme Court's recognition that the Sherman Act primarily was intended to prevent unreasonable restraints in “business and commercial transactions,” Apex, 310 U.S. at 493, 60 S.Ct. at 992, and therefore has only limited applicability to organizations which have principally noncommercial objectives, see Klor's, Inc., 359 U.S. at 214 n. 7, 79 S.Ct. at 710 n. 7, we find that the Sherman Act does not apply to the NCAA's promulgation of eligibility requirements.4
 
Moreover, even if the NCAA's actions in establishing eligibility requirements were subject to the Sherman Act, we would affirm the district court's dismissal of this claim.   The NCAA's eligibility requirements are not “plainly anticompetitive,” National Soc. of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978), and therefore are not per se unreasonable, see National Collegiate Athletic Ass'n v. Board of Regents, 468 U.S. at 101, 104 S.Ct. at 2960 (refusing to apply per se rule to NCAA's television plan because the NCAA is involved in an industry where horizontal restraints are necessary to the availability of the product);  McCormack, 845 F.2d at 1343-44;  College Athletic Placement Service, 1975-1 Trade Cas. (CCH) ¶ 60,117, available in 1974 WL 998, *3. Consequently, if the eligibility requirements were subject to the Sherman Act, we would analyze them under the rule of reason.
 
 ***
 
 "A myriad of rules must be agreed upon, and all restrain the manner in which institutions compete․   Thus, the NCAA plays a vital role in enabling [intercollegiate sports] to preserve its character, and as a result enables a product to be marketed which might otherwise be unavailable.   In performing this role, its actions widen consumer choice ․ and hence can be viewed as procompetitive."
 
***
 
While the parties have not cited any opinion addressing the particular bylaw at issue here, and we have found none, other courts have held that the NCAA's “no-draft” and “no-agent” rules, which disqualify a student-athlete from further intercollegiate competition if the student-athlete enters a professional draft or contacts an agent, are reasonable because they are procompetitive.   See McCormack, 845 F.2d at 1343;  Banks v. National Collegiate Athletic Ass'n, 977 F.2d 1081, 1087-94 (7th Cir.1992) (holding that NCAA's “no-draft” and “no-agent” rules do not have an anticompetitive impact on a discernable market);  Gaines, 746 F.Supp. at 746;  Jones, 392 F.Supp. at 304 (noting in dicta that “any limitation on access to intercollegiate sports is merely the incidental result of the organization's pursuit of its legitimate goals”);  see also Justice v. National Collegiate Athletic Ass'n, 577 F.Supp. 356, 379 (D.Ariz.1983) (holding that NCAA sanctions such as rendering a college team ineligible for post-season play and for television appearances imposed for violations of rule against providing compensation to student-athletes did not violate antitrust law because sanctions were reasonably related to the NCAA's goals of preserving amateurism and promoting fair competition).

 

[SoxJox]

This is laughably bad analysis. Is he really suggesting that the Chief Judge of the M.D. PA should have decided this motion in disregard of the Third Circuit, because its holding in Smith "squarely conflicts" with a Supreme Court case over a DECADE EARLIER??

Given the rather abbreviated nature of this piece, compared to Kane's 28-page ruling, its hard to say what his more fully developed argument would look like, but yes, that indeed seems to be the crux of his argument, which does not even rise to the level of "flimsy."  Kane methodically and thoroughly worked her way through the law and made the correct ruling, I believe.  However, just like everything else that has arisen in the Sandusky aftermath, there will always remain countering views.
 
Edit: I meant to add, even if wiping away all other factors,  Corbett's complaint fails because it did not show that a competitive injury was suffered by the citizens of Pennsylvania.

 

[WayBackVazquez]

Agreed.  I thought the analysis was quite thorough.  Although I don't think Edelmen was suggesting that the NCAA is a commercial actor "all the time, every time." I think he was simply saying that it can be considered a commercial actor in some instances.

 
I think he WAS suggesting the NCAA behaves with a commercial purpose all the time. Kane's opinion, and the Smith opinion both recognize the NCAA sometimes acts with a commercial purpose. Kane simply held that Corbett had not sufficiently pleaded any such commercial purpose here.

 

[WayBackVazquez]

Given the rather abbreviated nature of this piece, compared to Kane's 28-page ruling, its hard to say what his more fully developed argument would look like, but yes, that indeed seems to be the crux of his argument, which does not even rise to the level of "flimsy."  Kane methodically and thoroughly worked her way through the law and made the correct ruling, I believe.  However, just like everything else that has arisen in the Sandusky aftermath, there will always remain countering views.

 
Yes, but "countering views" like this are of no more value than the "waah waah boo hoo" sound made by every losing party and its counsel in every case, everywhere. If this guy is purporting to offer actual legal analysis, he should state that the case was wrongly decided according to actual principles of law, and not mislead a lay audience by suggesting that a district court judge should effectively ignore binding circuit precedent. If he thinks the case is wrongly decided, fine; if he expects it will be reversed by the Third Circuit, fine; if he expects the Third Circuit will misguidedly affirm but the Supreme Court will grant cert and reverse, okay. But what he actually wrote is garbage.

 

[SoxJox]

I think he WAS suggesting the NCAA behaves with a commercial purpose all the time. Kane's opinion, and the Smith opinion both recognize the NCAA sometimes acts with a commercial purpose. Kane simply held that Corbett had not sufficiently pleaded any such commercial purpose here.

If that is what he was arguing, he's an idiot.

 

[WayBackVazquez]

If that is what he was arguing, he's an idiot.

 
He has an (quixotic) agenda. He believes Smith, along with every other case holding that NCAA rules/sanctions can be non-commercial (including those prohibiting paying of players) was wrongly decided. Which is, I guess, okay from an academic standpoint. But if you're writing for a lay audience, you might want to mention that a district court is bound to follow the law of its circuit.
 
From A Short Treatise on Amateurism and Antitrust Law: Why the NCAA's 'No Pay' Rules Violate Section One of the Sherman Act, by Marc Edelman

 

Although eight lower-court decisions have found NCAA eligibility rules to be non-commercial and thus exempt from the Sherman Act, each of these decisions is wrongly decided. Many of these decisions ignore Supreme Court precedent explaining that competitive restraints in educational markets are to be viewed identically to competitive restraints in all other markets. Meanwhile, many other decisions disregard persuasive factual evidence indicating that college sports today have become a multi-billion dollar enterprise that engages in "interstate commerce."
 
***
 
Simply stated, antitrust law does not permit the NCAA to impose rules that ubiquitously prevent student-athlete pay.
 
 

 

[SoxJox]

This isn;t about the Commonwealth vs. NCAA, as that is now resolved with Gov Corbett announcing he will not appeal dismissal.
 
But of the Sandusky front: Preliminary hearing set for former Penn State administrators accused of Sandusky cover-up.  Hearing is 29 July.

 

[WayBackVazquez]

I believe the NCAA's response to the Paterno suit is due today. I expect it will be a motion to dismiss; hopefully some light reading this afternoon.

 

[WayBackVazquez]

The breach of contract claims are going to get dumped on standing/privity;  the injurious falsehood/defamation claims get dumped because (1) the NCAA didn't make any statements, the Freeh report did, (2) they haven't pled any specific false statements, they look like generalities/opinions, and (3) they haven't pled whom exactly the false statements were made about, and why they were recklessly made; and the civil conspiracy claim is going to get dumped because after ll the other claims get dropped, they have no unlawful acts.

  

What are the elements for proving breach of contract in PA for a non-signatory? And if they include the intention of the parties to give benefit of the agreement to third-parties, do you think it's enough to plead, "the NCAA and PSU intended to give benefit of their agreement to third parties uninvolved in rules findings but directly affected"? Sounds like a threadbare recitation of elements to me.

 
Here's the NCAA's MTD (PA = objections)
 
10. Plaintiffs lack standing to assert their breach of contract claims against the NCAA because they are neither parties to Penn State’s membership agreement with the NCAA, nor third-party beneficiaries of that agreement.
 
21. Plaintiffs’ Complaint fails to point to any actual provision of the Bylaws they seek to enforce.

22. Additionally, none of the alleged procedural violations that Plaintiffs complain about vest any rights in them, as opposed to Penn State.

23. For these reasons, Coach Paterno and Mr. Clemens are not third-party beneficiaries of Penn State’s membership agreement with the NCAA.

25. It was not within the intent of the parties to Penn State’s membership agreement with the NCAA that every uninvolved student or competitor to Penn State would have the right to veto Penn State’s decision to achieve a negotiated resolution to potential violations of NCAA rules.
 

intentional interference is going to get dumped because bald claims that defendants knew their actions would interfere with plantiffs' future employment, and did it for that purpose don't cut the pleading mustard;

 

51. Plaintiffs fail to allege any material facts in support of the claim, and instead assert purely skeletal legal conclusions.

52. Specifically, Plaintiffs fail to identify a single specific contract or opportunity that has been interfered with.

54. Additionally, Plaintiffs have not sufficiently pled that the NCAA intended to interfere with any contract or prospective contract. Indeed, Plaintiffs have not alleged any action at all by the NCAA.

 

the injurious falsehood/defamation claims get dumped because (1) the NCAA didn't make any statements, the Freeh report did, (2) they haven't pled any specific false statements, they look like generalities/opinions, and (3) they haven't pled whom exactly the false statements were made about, and why they were recklessly made;
 

 
33. First, none of the alleged defamatory statements even mentions any of the Plaintiffs or could reasonably be interpreted as referring
to them.

35. Second, Plaintiff’s defamation claim fails for the additional and independent reason that the statements identified by Plaintiffs are expressions of the NCAA's opinion, based on facts that were publicly disclosed, i.e., the Freeh Report.
 

and the civil conspiracy claim is going to get dumped because after ll the other claims get dropped, they have no unlawful acts.

 
60. Plaintiffs fail to allege that the NCAA and FSS combined for an unlawful purpose, specifically, to commit a tort. In stating their civil conspiracy claim, Plaintiffs allege only that Defendants conspired to “breach[] the contract between the NCAA and Penn State,” but a civil conspiracy claim cannot be premised on a breach of contract.
 

The complaint's main gripe is with the findings of Freeh report, which was commissioned by the Penn State Board of Trustees.
 
This suit is quite literally worthless for everyone except the lawyers.

 
"Their suit complains primarily about the conclusions of the Freeh Report, conducted at the behest of the Penn State Board, and the university's acceptance of its findings," NCAA chief legal officer Donald Remy said in a statement outlining the organization's arguments. "The NCAA did not commission the Freeh Report nor had any role in it."

 

[terrynever]

Got this in the mail from Penn State today. The big brass wants to move forward. It's the Paterno loyalists who want to keep digging up the past. But you guys already knew that.
 
Update
from Penn State

 
This week, Penn State officials, including members of the administration and board of
trustees, reported on the rapid implementation of nearly all of the changes
recommended in a report compiled by independent investigator and federal judge
Louis Freeh. In an interview with the Washington Post (also available here), Board Chair Keith Masser, Vice Chair
Paul Silvis and Board Governance Committee Chair Keith Eckel talked about the
significant reforms enacted at Penn State. The goal of the effort, Masser said,
has been to “ensure that our institution never again has to ask whether it did
the right thing or whether more could have been done.” A complete status update
on the actions taken is available on the University's progress website.

 

[WayBackVazquez]

Sollers is a good attorney, but not exactly a heavyweight. These are friends of the family doing what they can do, but the claims are just seriously weak, especially in a fact-pleading state like PA. 
 
The breach of contract claims are going to get dumped on standing/privity; intentional interference is going to get dumped because bald claims that defendants knew their actions would interfere with plantiffs' future employment, and did it for that purpose don't cut the pleading mustard; the injurious falsehood/defamation claims get dumped because (1) the NCAA didn't make any statements, the Freeh report did, (2) they haven't pled any specific false statements, they look like generalities/opinions, and (3) they haven't pled whom exactly the false statements were made about, and why they were recklessly made; and the civil conspiracy claim is going to get dumped because after ll the other claims get dropped, they have no unlawful acts.

 
Well the judge's ruling on the motion to dismiss/objections was issued a couple of days ago. I was correct in my predictions on the claims in bold (though he granted leave to amend, but I'm certain we won't see that, ie, PSU is not suddenly going to join the suit), and wrong about the strikethroughs.
 
Obviously, I think he bent over backwards to find the remaining claims sufficently pled. Basically, everything that remains is based on (1) the allegation that, in adopting the Freeh Report, the NCAA disparaged 1 of the 4 PSU Trustees by stating that "the Board of Trustees . . . did not perform its oversight duties" and "by not creating an environment where senior University officials felt accountable"; and (2) the allegation that in adopting the report, the NCAA disparaged Baby Paterno and the other coach by stating that "some coaches . . . ignored the red flags of Sandusky's behaviors and no one warned the public about him." Pretty weak sauce. The judge considered what I believe should have been fatal to the defamation claim--that the generalized statements plaintiffs point to didn't identify about whom the false statements were allegedly made-- to be a "closer question," but ultimately let the claims stand. I still don't any way the remaining plaintiffs are going to be able to put forth evidence sufficient to withstand summary judgment that they were the ones being singled out, and that the NCAA knew the Freeh report was false.
 
In any event, the main goal of the suit has failed. The claims brought on behalf of the "Penn State Community" and the current Trustees have been rejected, as have the contract claims. That is, the prayers for relief 1-4 (overturning the Consent Decree and sanctions) are DOA.

 

[MentalDisabldLst]

Do we have a ruling yet on our $25 jimmy fund bet?  Or is it a push, based on that split outcome?

 

[WayBackVazquez]

There was no bet. You never responded when I asked you what you meant by "goes to discovery," which can commence as soon as the complaint is filed. But my offer to bet you that it never goes to trial stands.

 

[SoxJox]

Ruling may make convictions against three former Penn State administrators difficult.  Superior Court ruling is in the case of Monsignor William J. Lynn, who was the first Catholic Church administrative official convicted of endangering the welfare of children abused by other priests.

"The intermediate court found that Monsignor Lynn should not have been charged as a principal under the pre-2007 child endangerment statute because he was not the direct supervisor of any of the alleged victims.
 
"Michael J. Engle of Greenblatt, Pierce, Engle, Funt & Flores said the charges in the Lynn case mirror the endangerment charges that have been filed against the Penn State defendants, and the Superior Court's reasoning behind tossing the Lynn case could apply to the Penn State administrators.

""Given the language the Superior Court used and the way it interpreted [the statute] and described its application, a very strong argument could be made by the defense," he said. "Not everyone is going to have those duties that the statute makes criminal if you violate them. I can't imagine how those three defendants won't be successful in arguing that."
 
"The success of that argument, however, would depend on whether the state Supreme Court agrees to hear the Philadelphia district attorney's office's appeal of the Superior Court's ruling on Monsignor Lynn.
 
"'That issue may not be final certainly, if the Supreme Court decides to hear that,' said Matthew Mangino, a former district attorney for Lawrence County and now a practicing criminal defense attorney. 'But ultimately those charges may not be appropriate in the Penn State case.'"
 
I've not had a chance to read the Lynn ruling, but here it is.

 

[MentalDisabldLst]

There was no bet. You never responded when I asked you what you meant by "goes to discovery," which can commence as soon as the complaint is filed. But my offer to bet you that it never goes to trial stands.

 
Well, I meant that the judge would deny summary judgment.  Not sure where we are relative to that milestone.  I wouldn't want to bet against the parties settling before trial.

 

[WayBackVazquez]

Let's do an easy $25 to the jimmy fund, you pay if the trial goes to discovery, I pay if it's tossed or settled before then?

So what did you mean by settled?

 

[SoxJox]

[SIZE=10.5pt]The statute in question under which Lynn was convicted identifies classes of persons to which the statute applies: [/SIZE]“A parent, guardian or other person supervising the welfare of a child under [SIZE=10.5pt]18 years of age[/SIZE] commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” 
 
[SIZE=10.5pt] [/SIZE]
The water is muddied somewhat because the statute was amended in 2007 to read: "[SIZE=10.5pt]A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers[/SIZE][SIZE=10.5pt] the welfare of the child by violating a duty of care, protection or support.”[/SIZE]
 
[SIZE=10.5pt] [/SIZE]
[SIZE=10.5pt]In the end, the distinction didn’t matter because the appeals court found that the Commonwealth had presented insufficient evidence - in fact no evidence whatsoever - that Monsignor Lynn had served in any capacity relative to caring for children - either as a supervisor or employer of someone who was.[/SIZE]
 
[SIZE=10.5pt] [/SIZE]
[SIZE=10.5pt]This is the same hurdle that I have heard many argue will be presented again to the Commonwealth in the Spanier, Curley, and Schultz case.  There appear to be two things that may come into play: 1) The trio's actions occurred during the pre-amended period (i.e., applicable in their case to "supervisors"), and 2) there has been no suggestion that any of the three supervised children.[/SIZE]
 
[SIZE=10.5pt]There is a second conviction in the Lynn case on serving as an accomplice to a pedophile's (or other criminal party's) actions, that this court also reversed.  Again, similar circumstances to the Penn State trio.[/SIZE]
 
[SIZE=10.5pt]Who knows how it will turn out?[/SIZE]
 
[SIZE=10.5pt]But, as Mental suggests - I think - is that the trio are not going to settle for some lesser charge to avoid trial.[/SIZE]

 

[WayBackVazquez]

I have no idea what (or what case) you're talking about.

 

[SoxJox]

I provided a link in post #91

 

[WayBackVazquez]

Okaaaay, but Mental didn't suggest anything about that case.

 

[SoxJox]

Okaaaay, but Mental didn't suggest anything about that case.

I realize that.  I thought he was talking about the Spanier, Curley, Schultz case, and the article to which I linked suggested that the logic and rationale used in the Lynn case could call into question the Commonwealth's case against the trio, because it appears to be similarly positioned.

 

[WayBackVazquez]

I realize that.  He was talking about the Spanier, Curley, Schultz case, and the article to which I linked suggested that the logic and rationale used in the Lynn case could call into question the Commonwealth's case against the trio, because it appears to be similarly positioned.

 
Pretty sure we were talking about the Paterno v NCAA case.

 

[SoxJox]

 
Pretty sure we were talking about the Paterno v NCAA case.

Upon reflection and revisiting the earlier postings, you are absolutely correct. Still, Lynn is interesting in the other case(s).