Jim Dey: Is there any limit to the NCAA's jurisdiction?

Jim Dey: Is there any limit to the NCAA's jurisdiction?

When the sports media called for the obliteration of Penn State University's football program in the wake of the Jerry Sandusky child sex scandal, the NCAA moved quickly.

It threatened to impose the death penalty on the venerated program before eventually negotiating less draconian, but still brutal, penalties that included severe scholarship restrictions, millions of dollars in fines and no postseason play for four years.

This past week, Pennsylvania Gov. Tom Corbett filed an anti-trust lawsuit against the NCAA alleging the organization wrongfully forced the imposition of penalties on the university in a case where there were no NCAA rules violations and where it had no authority to act.

The lawsuit raises serious questions that go to the heart of the NCAA's authority to act in cases and at times of its own choosing.

Here are just a couple.

Does the governor of Pennsylvania have legal standing to challenge a penalty agreement that was negotiated by the NCAA and Penn State University? Penn State isn't a party to Corbett's lawsuit and has distanced the school from it.

On what basis can Corbett sue the NCAA on anti-trust grounds, which involve issues of finance and competition?

What about the NCAA's status as a voluntary organization in which all member institutions agree to abide by the organization's rules and follow its dictates. Does that status essentially immunize the NCAA from outsiders' lawsuits?

Unless the case is thrown out at an early stage, it probably will take years for all this to be sorted out in the courts. Indeed, Penn State may complete its sentence, or most of it, before any resolution is reached.

But the facts and emotional power are sufficiently unique that Sports Illustrated's legal expert calls it "hard to predict."

"The sports nexus between the NCAA and its punishment of Penn State ... is dubious," SI's Michael McCann wrote, noting that criminal activity by a former university coach does "not clearly fit with the NCAA's purview."

Sean O'Leary, a New York lawyer who has represented players and coaches in NCAA disputes, calls it not just a fascinating case but an important one.

"I wish I was involved in it," he said. "If I was representing Penn State, I never would have recommended that they sign that consent decree."

For those not familiar with the facts, here's a bare-bones description. In the late fall of 2011, former Penn State football coach Jerry Sandusky was indicted in connection with a series of sexual assaults on young boys that had occurred over a period of years. Also named in the indictments were two Penn State administrators, who were accused of perjury in connection with the grand jury investigation. The two administrators were placed on leave. The university's president eventually was fired along with venerated football coach Joe Paterno.

A national uproar ensued, and the firestorm blew out of control last summer when a report commissioned by the university and conducted by former FBI Director Louis Freeh outlined the extent to which university officials, including the now-indicted former President Graham Spanier, ignored signs that Sandusky was preying on children.

Driven by public outrage over Sandusky's behavior and criticism over its alleged weak response to it, the NCAA imposed, with the university's acquiescence, penalties. The NCAA did not conduct its own investigation, using the findings of the Freeh report.

The potential problem for the NCAA is that the Sandusky case — an outrageous, years-long victimization of young boys — is a criminal and civil matter. Other than the associations some of those involved had with Penn State football, it was not a sports scandal.

Prosecutors have come down heavy. Sandusky is serving what amounts to a life sentence following his convictions. Three others await trial.

Meanwhile, the university faces a slew of claims for civil damages in connection with its failure to report Sandusky's questionable behavior that was witnessed by university employees.

But if any NCAA rules were violated in connection with this tawdry story, no one had pointed them out. NCAA President Mark Emmert acknowledged as much when he said that "the circumstances involved in the Penn State matter are ... unlike any matter encountered by the NCAA in the past."

The NCAA this week denounced the state of Pennsylvania's lawsuit as an "affront to all of the victims of this tragedy." Donald Remy, NCAA general counsel, referred to "lives that were destroyed by the criminal actions of Jerry Sandusky."

He's indisputably correct about Sandusky's behavior, which, tellingly, Remy properly describes as "criminal."

But that's not the point, Pennsylvania's lawsuit alleges. Gov. Corbett isn't challenging the civil or criminal nature of the Sandusky case. Indeed, when Corbett was the state's attorney general, he initiated the Sandusky investigation. He's questioning the NCAA's jurisdiction and authority to impose penalties on the university for the felonious behavior that occurred.

Lawyer O'Leary noted that there have been "lots of past cases of collegiate criminal conduct" by persons associated with school athletic programs that were ignored by the NCAA.

"There's nothing in the NCAA rule book that addresses (the Penn State) case," he said.

That may be true. But the facts will be irrelevant if Pennsylvania's lawsuit is tossed on procedural grounds.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or at 351-5369.

Sections (2):Editorials, Opinion
Categories (2):Editorials, Opinions

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