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Wednesday, January 2, 2013
Lawsuit against NCAA doomed

By Lester Munson
ESPN.com

In a federal lawsuit filed on Monday, Pennsylvania Gov. Tom Corbett attacks the NCAA and the sanctions applied to Penn State as a result of the Jerry Sandusky scandal.

Corbett and his lawyers claim the NCAA violated the nation's antitrust laws when the NCAA insisted that the university agree to severe sanctions. The lawsuit demands that the NCAA's sanctions be lifted and raises questions about the authority of the NCAA to govern college sports and on other legal issues. Here are some of the questions and their answers:

Q: Will Gov. Corbett succeed in his attempt to undo what the NCAA has done to Penn State?

A: No. There are two basic legal rules that are likely to result in an early dismissal of Corbett's lawsuit. The words that describe these legal rules are "standing" and "waiver." To succeed in any civil lawsuit, the person filing the lawsuit must have standing to sue, a stake in the outcome of the dispute. If, for example, a former Penn State player filed suit over the NCAA's elimination of Penn State victories and championships, he would have standing to challenge the NCAA, because he played in the games. Corbett has no identifiable interest or standing in the welfare of the Penn State football program. His lawyers, clearly worried about the standing question, attempt to establish standing for Corbett with multiple mentions of supposed damage to the "state revenue base," but it won't work. Corbett is the wrong guy to file this lawsuit.

"Waiver" describes an action that has already been agreed to and accepted -- the NCAA sanctions that Corbett attacks. The university agreed to the sanctions in a "consent order" last summer. If Corbett ever had any chance to attack the sanctions, it disappeared with the university's agreement and its waiver of the right to question the sanctions.

Q: Could Corbett's lawsuit benefit from his role as governor, given the case will at least initially be heard in Pennsylvania?

A: If Corbett and his lawyers manage to find a judge who will lean in the direction of Penn State, they may succeed in the early litigation stages as the beneficiaries of a home-court advantage. Even a federal judge with lifetime tenure can be subject to local pressures. But even this possibility looks remote. The case is currently assigned to U.S. District Judge Yvette Kane in Harrisburg. Kane, 59, is a graduate of Nichols State University and Tulane Law School and has no immediately apparent connections to Penn State.

Q: What is Corbett's legal theory?

A: The 43 pages of Corbett's lawsuit are filled with political rhetoric and almost devoid of anything resembling jurisprudence. The only apparent legal theory is based on antitrust laws that govern monopolies that use their powers to fix prices or to manipulate markets. There is, of course, no doubt that the NCAA is a monopoly. It has the power of a cartel and is clearly subject to antitrust scrutiny.

Corbett asserts that the NCAA is using its monopoly powers to restrain one competitor (Penn State) from competing with other member schools, labeling the sanctions a "clumsy attempt to harm a competitive member school." The problem for Corbett is that the NCAA in its punishment of Penn State is doing exactly what its members created it to do. It is not conspiring to manipulate any market. It is, instead, performing the regulatory function that the Division I schools want it to perform.

Q: What is the next step in the lawsuit?

A: Corbett wants the court in Harrisburg to issue an injunction that would prevent the NCAA from enforcing the Penn State sanctions. Even if Corbett and his lawyers avoid an early dismissal, they face serious obstacles. Injunctions in antitrust cases are rare. To obtain the injunction -- the most drastic relief a judge can give in a civil case -- the governor must show irreparable harm and a probability that he will succeed in any appeals.

The NCAA, in its resistance to the request for the injunction, will argue that the sanctions are a reasonable exercise of NCAA powers. It's an argument that usually succeeds in stopping an injunction. In antitrust litigation, the question of whether something is reasonable is determined by a jury. If the case goes to a jury trial, there would be months, even a year or two, of exchanges of documents and pretrial interrogations of witnesses. By the time the trial was concluded and appeals were decided, the Penn State football program almost certainly would have completed its compliance with the four years of sanctions.