BELLEFONTE — The 7-year-old son of a former Nittany Lion made a startling discovery about his dad’s playing days at Penn State two weekends ago.
The boy accompanied his dad to Penn State’s game against Michigan, and at Beaver Stadium, he paged through the program to find when his dad played under coach Joe Paterno.
As the boy was dismayed to find, there were a bunch of zeroes in the win column, as the victories were wiped out as part of the NCAA’s sanctions against the university.
“It hit him in the gut,” said the former Nittany Lion’s lawyer, Paul Kelly, on Tuesday, after he and other attorneys made arguments in the hope of convincing a judge to allow a lawsuit against the NCAA to continue.
Kelly used the anecdote in the courtroom during the three-hour hearing, which saw his co-counsels and a lawyer for the NCAA argue over whether the lawsuit should be dismissed, as the NCAA is requesting. The plaintiffs, who include the former player, Paterno family members and Penn State trustees, want a judge to void the consent decree that authorized the sanctions against the university.
Senior Judge John B. Leete, of Potter County, did not immediately rule from the bench, and he did not give any indication of how soon he would have his decision. His options are to allow all the claims to progress to the discovery phase, or dismiss some or all of them.
At the center of the lawsuit is whether the NCAA bypassed its own rules when it punished Penn State for the Jerry Sandusky scandal and used the Freeh report in lieu of its own investigation.
The judge on more than one occasion agreed, saying, “They cut a new path with this case, no question about it.” But whether there are legal merits to support the claims about the harm from the sanctions remains to be seen.
One of the most important decisions will be whether the case can move on without Penn State, which is not a party. NCAA lawyer Everett Johnson said the university is an “indispensable party,” or a group that would be necessary for a lawsuit to continue.
“The relief that is requested in this case, your honor, dramatically impairs the rights and privileges of Penn State,” Johnson told the judge.
“If there were no consent decree, Penn State would be back at square one.”
If the consent decree were voided, Johnson said, Penn State would be subject to an investigation and possibly harsher sanctions than what had previously been imposed.
“If the court were to invalidate the consent decree,” Johnson said, “that would, of course, restore that risk to the equation.”
Joseph Loveland, the counsel for Paternos and their supporters, disputed that Penn State as a required party in the lawsuit. Loveland told the judge that the consent decree contains a provision that Penn State waived its right to mount a legal challenge.
Loveland said his clients should have standing in the lawsuit because they are third-party beneficiaries of the so-called contract Penn State signed with the NCAA in becoming a member of the organization.
“They don’t want anyone to pull back the covers and look what happened in this situation,” Loveland said.
The NCAA also said several of the claims made by the plaintiffs lack specific information and that they should be dismissed.
For instance, Johnson said the two former assistant coaches, Jay Paterno and William Kenney, alleged they weren’t able to find work as football coaches because of their association with the consent decree.
But, Johnson said, their claims make no reference of whether they tried to find jobs or specifically how they were hurt.
The NCAA lawyers also disputed whether the estate of Joe Paterno was hurt financially by the consent decree.
Lawyer Ashley Parish said Paterno had endorsements and contracts with Nike, Bank of America and other companies, and the family donated that money to charity.
But Johnson said the Paternos cannot claim financial damages because the coach is not alive. The plaintiffs would have to show commercial activity now that’s been harmed, he said.