Paterno Family Requests Review of the NCAA Decison

Submitted by bluebyyou on August 3rd, 2012 at 4:20 PM

Well folks, we hadn't heard from the Paterno family for a few days, but fear not, they are back at it.  This time, they are requesting a review of the NCAA sanctions. Where this could lead is somewhat interesting in that they seem to be able, depending upon how the NCAA responds, to take them to court.

http://espn.go.com/college-football/story/_/id/8231167/joe-paterno-family-sends-letter-demanding-appeal-ncaa-sanctions

I believe this isthe pertinent portion of their position and where it might lead:

"Sollers argues in the letter that the NCAA was wrong to suspend its usual infractions committee procedures and accept the findings of the Penn State-commissioned Freeh Report. The report by former FBI director Louis B. Freeh found that Paterno, former Penn State president Graham Spanier, athletic director Tim Curley and vice president Gary Schultz concealed the activities of Sandusky, who was convicted by a jury on June 22 of 45 counts of child sexual abuse.

NCAA spokesman Bob Williams did not immediately respond to a request for a comment. But if the NCAA rejects the request for an appeal hearing, the Paterno family could use the request as the basis for legal action against the NCAA."

/Edit  I also came across a very interesting piece on the negotiations between Penn State and the NCAA - long but worth the read:

http://espn.go.com/espn/otl/story/_/id/8228641/inside-secret-negotiations-brought-penn-state-football-brink-extinction

Comments

the Glove

August 3rd, 2012 at 7:03 PM ^

I'm going to have to disagree with you on that. The NCAA has an entire enforcement and investigation department. I interned with a major conference in NCAA compliance, but by no means do I act like I know everything because the rulebook is way too big to remember it all, but a friend of mine was working at Indiana when they were slammed with their sanctions in basketball. I know for sure the NCAA was involved with that because he was interviewed along with everyone there. And to be completely honest with you I cannot think of an incident where the NCAA did not do the investigation. SMU, USC, OHIO, UNC, and there even working on Miami as we speak. That is why this instance is so unique because their enforcement team has not even step foot on to the penn state campus.

treetown

August 3rd, 2012 at 8:49 PM ^

If this were the usual "booster provided a car" or "paper work that didn't get all of the t's crossed and i's dotted" problem, it would probably play out the way you describe - standard operating procedure: by the book NCAA investigation and report. But the unusual circumstances and particularly the heavy intense scrutiny of the whole nation on PSU and the NCAA definitely played a role. Freeing up the players to transfer without penalty is undoubtedly a fair thing to do and about the only time I can think of where the NCAA did actually help people who were innocent bystanders largely to what went on. Usually the people who pay the penalties are just those who are around and the guilty parties have moved on to the pros and other coaching jobs.

Continuing to fight this publically is a pretty risky move. It may not open other sex scandals but may reveal other more conventional football coverups. The take home explicit message from the Freeh report is that when faced with something truly evil, the people in charge wouldn't act because it was feared it might hurt reputation of the team, but the implicit message is that they had been thinking that way (and acting that way, e.g. covering up for past football problems) for a long time, so long that they couldn't or wouldn't see that this was way more serious. If this action causes the sanction agreement to become void and the NCAA is forced to descend on campus and really turn over every stone and dig into every nook and cranny, it will make the present sanctions seem lenient. The family doesn't get it - if they try to back the NCAA and Penn State with it into a corner, it won't end well.

the Glove

August 3rd, 2012 at 9:46 PM ^

Very insightful, I agree with your reasoning. I didn't look at it from the perspective that penn state could possibly be afraid of actual ncaa violations being uncovered. As bad as it seems they might be afraid they could possibly be opening Pandora's box if they would fight back in anyway. Well played sir.

jblaze

August 3rd, 2012 at 10:23 PM ^

you may be correct, but the NCAA relies heavily on the courts andthe school's investigation. I think the NCAA just reviewed M's independent consultant for stretchgate. 

It's why the NCAA needed  Federal inictments to get USC and (unfortunately) Michigan with  Webber.

snarling wolverine

August 3rd, 2012 at 10:49 PM ^

And to be completely honest with you I cannot think of an incident where the NCAA did not do the investigation. SMU, USC, OHIO, UNC, and there even working on Miami as we speak.

My understanding is that it's generally not NCAA officials themselves asking the questions and searching email histories. Schools hire law firms to do that.   The NCAA kind of supervises while the investigation is going on, but most of it is "outsourced."

pkatz

August 3rd, 2012 at 4:30 PM ^

yet the fucking Paterno family just can't let it go - God forbid they allow the victims to start to heal. The Paternos seem to have this irrational need not to HEAR the truth, and just want to pick this scab until only they are satisfied,

BucksfanXC

August 3rd, 2012 at 4:30 PM ^

Last I checked, Joe Paterno's good name was not an enumerated liberty for which due process protection must be afforded. None of the Paterno's have been deprived of due process in any way. They have no actionable cause. They are only wasting money. Money that they will need as none of the have jobs or job prospects and are likely going to themselves be sued in civil court.

CLord

August 3rd, 2012 at 5:47 PM ^

I may be mistaken, but what undermines this windbag attorney's argument is that Penn State could just ignore the NCAA's penalties and the $60M fine if it wished to do so, and choose to disassociate from the NCAA.  As an association, the NCAA has unbounded discretion to regulate/penalize it's members as it sees fit within the confines of the law (i.e., no discrimination, fraud, malicious gain, etc.), and if members do not like it, they are welcome to leave the association.  Yes, the loss of sports revenues would be davastating, but last I remember, the NCAA wasn't formed to generate athletic revenues, it was formed to regulate amateur, collegiate sports and the conduct of athletes, coaches and schools regarding same.

Ponypie

August 3rd, 2012 at 7:02 PM ^

I would say that it is highly unlikely that the family has standing in the matter - that is, they have no legal interest in the case despite their apparently profound need to clear Joe's sullied name. I imagine any such suit will be quickly dismissed, as they cannot show harm.

Section 1

August 3rd, 2012 at 8:48 PM ^

so no "standing" question as a matter of state or federal law.

The Paterno family's interest as of now is a matter of NCAA bylaws (see my citation below).  The NCAA's own definition of "interested parties" would clearly include Joe Paterno as head coach of the Pennsylvania State University football team.  But does that status survive death?  Joe is no longer with us.  Can his estate be an interested party?  I'd be amazed if the NCAA has survivorship clauses.  It is weird, novel and interesting.  Definitely not trivial.

grumbler

August 3rd, 2012 at 10:43 PM ^

Strangely, I don't think that Paterno is an "involved person" in the NCAA sanctions on PSU.  The NCAA bylaws (32.1.5) state that involved persons are those "who have received notice of significant involvement in alleged violations through the notice of allegations or summary disposition process." Paterno was dead by the time the summary disposition process started.  He wouldn't have received such notice.

I'll leave it to the law talkers to tell me where I am wrong.

Wendyk5

August 3rd, 2012 at 4:31 PM ^

It's pretty amazing how self-serving they are. Their renouncement of Sandusky was so, so weak compared to this. Whether the NCAA was correct or within its jurisdiction, moves like this make the Paternos even more unsympathetic. 

NOLA Wolverine

August 3rd, 2012 at 4:37 PM ^

The timing of this reports' publishing made this whole sanctions mess much more awkward than it needed to be. Emmert doesn't look fantastic in this whole situation because of this "quick striking" decision (as if he/they only began formulated this after the Freeh Report's release), but there's a pretty obvious time constraint as far as trying to let kids transfer. This is all garbage that probably would have been handled in the usual manner had the report come out at a time giving the NCAA more lead time. Not that there's a whole ton more to discuss here, but some people from Penn State/Paterno family still would have laid out some sort of rebuttal.  

On that last point though, how do the Paterno's have any stake in this sanctions process at this point? I don't see how they can come in and protest. 

Section 1

August 3rd, 2012 at 4:50 PM ^

That's a very heavy-hitting law firm, King & Spalding, and he's the managing partner in the D.C. office.  Of course, he's the guy who's been working for Paterno all along since Joe Pa was fired and I don't think he ever worked for Joe before that.  Sollers is a white collar criminal investigations specialist.

He may be on to something; he may be seeking to sue Penn State on behalf of the estate someday.

I know; defending Joe Pa these days is like defending Hitler (Godwin's Law - check), and apart from the fact that Don Canham seemed to like Paterno, not only don't I give a rip about PSU, I didn't even want them in the Conference to begin with.

But as morally "right" as the NCAA sanctions appear to outsiders, what is very clear is that they threw their procedural book out the window in this case.  It sort of goes to the very nature of the NCAA.  They may think that as a voluntary organization of self-policing member institutions, if they negotiate a punishment deal with a member university, they can together agree on anything.  And so they did.  And they aren't punishing Joe Pa; he's not coaching any more games, he was fired by Penn State before the sanctions, and he's not exactly handing out any more schollies.  They decided to vacate Penn State victories, not Joe Paterno victories.  As such.

Still, I am going to look into more about what it means to be an "involved party" (32.1.5) for purposes of an NCAA appeal. This story might read like a headline from The Onion, but I bet that the NCAA's infractions committee counsel and general counsel aren't laughing.  Penn State sure isn't laughing.

Edit. - One thing that immediately comes up; the bylaws allow an "involved party" to appeal, but not necessarily demand a hearing.  Is the Paterno Estate an "involved party"?  Or did Paterno's right to an appeal die with him?

Section 1

August 3rd, 2012 at 5:03 PM ^

As for the estate's interest, it is probably an interest in protecting the late coach's reputation. Or something like that.  Hard to say.  Usually, in show cause situations, you have a coach who is concerned about his ability to come back and coach in the future.  That's no longer Joe Paterno's problem.

jackrobert

August 3rd, 2012 at 5:24 PM ^

The NCAA is not a state actor, so there is no constitutional basis for JoePa's estate to bring a cause of action against the NCAA based on a due process violation.  PSU is of course a state actor, so the estate could theoretically sue them for violating procedural due process.  The estate's best basis for suing  PSU probably lies in contract--but I suspect PSU can argue that JoePa breached some provision of the contract by participating in the cover-up.  Should be interesting to see how this plays out.

MadMonkey

August 3rd, 2012 at 5:33 PM ^

interest in JoePa's legacy.  The estates of many deceased celebrities are extremely valuable.  I believe it can be argued, effectively, that PSU and the NCAA improperly entered into an agreement that reduced the value of the Paterno estate in order to further their respective interests in getting the matter resolved quickly.  For example, what is the difference in the value of "Paterno the coach with the most wins in college history" vs. "Paterno, the coach with the 12th most wins"?  I am sure that a value can be calculated that indicates a very large monetary loss to Paterno's estate.

Paterno's estate will probably try to use such an action to pursue their real objective: restoring JoePa's legacy/reputation in a very public forum.  

Rage

August 3rd, 2012 at 8:51 PM ^

It's a real shame in this country that someone just has to be accused of something and everyone turns on them.  When people get something in there mind, regardless of the truth, it's usually there to stay.  

I knew a priest in Detroit, who was at his parish for years.  One day an adult male accused the priest of molesting him when he was an alter boy.  My friend was immediately taken from his post and his entire church soon found out why.  About a year later, the accuser admitted to the police that he lied about the whole thing and was trying to get money from the diocese.  

The priest lost everything.  To this day, most of the parish thinks he's a child molester.  That is fucked up in this country.  You build a million bridges, but only get accused of something...  

If I the Paterno family even actually proved that the Freeh investigation was inaccurate or fraudulant, it's too late as the damage is already done in most people's minds.  That's a real shame.

 

LB

August 3rd, 2012 at 9:22 PM ^

Sure you can.

Your friend's story is a sad one. Had it not been for the actions of his superiors in covering it up, it might not have come to pass. Not his fault, but how many of his peers participated actively, either in the abuse, or in covering it up? Did he ever hear a whisper? Did he act on it?

Rage

August 13th, 2012 at 9:18 PM ^

That's my point exactly.  You're equating Paterno with Sandusky because that's what everyone is saying, not because Paterno was convicted of 48 counts.  

Don't confuse what I'm saying as the only point I have is that Paterno has/had a right to defend himself from the accusations.  He was never able to defend himself and everyone is condemning him as if HE WAS Sandusky.  (Which he may or may not be, but that's besides the point...)  My only point is that nowadays, people are guilty once they are accused...

bluebyyou

August 3rd, 2012 at 4:46 PM ^

I never really got why a half-crippled 80+ year old man was so insistent upon remaining a coach.  In hindsight, I believe it was a horrible case of ego and entitlement which, I believe, was the salient reason why Sandusky was allowed to molest children for at least 13 years longer than necessary.  I think the whole family is permeated with this same sense of entitlement.  Judging from some of the comments that come from Penn State fans, there remains abject denial that Paterno was anything but a saint. 

I also wonder what else was covered up for the program.  I'd bet at least one or two NCAA infractions over Paterno's career were quietly slipped under the rug.

This latest challenge is going to be interesting.

I have a question for those of you familiar with the FOIA.  Penn State is exempt from FOIA requests due to a Pennsylvania statute.  How then can Paterno's family/estate obtain information from the university unless it is part of the discovery process and then only after a suit has been filed?

mgobleu

August 3rd, 2012 at 7:44 PM ^

Thats interesting. I never thought of it that way, but it's not like they were going to open the job up to outsiders. Whoever would have been the new coach probably wouldnt learn anything more than they already knew before they started the job.

Erik_in_Dayton

August 3rd, 2012 at 5:03 PM ^

The NCAA is forced to go back and use their usual procedures.  The NCAA then punishes PSU the same as they did before.  The Paternos have spent a bunch of money to make this happen, and the amount of Google hits for "Joe Paterno" and "child molestation" go up by a healthy amount. 

snarling wolverine

August 3rd, 2012 at 5:12 PM ^

I have a feeling that further investigation (by an independent source, not the Paterno family buddy) will only end up making things look worse for Paterno and PSU in general.