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NCAA Defends Consent Decree, says Paterno Family Rewriting History

by on May 07, 2014 10:15 AM

The NCAA continues to defend the validity of the consent decree reached with Penn State in the wake of the Jerry Sandusky child sexual abuse scandal.

The decree included unprecedented sanctions against Penn State's football program as Sandusky, a former Penn State football coach, abused children on campus and Penn State employees allegedly knew about the abuse and tried to cover it up.

Now, the family of the late Penn State head football coach Joe Paterno, some members of the Penn State Board of Trustees, and others, are suing the NCAA and Penn State saying the decree should be thrown out.

The NCAA maintains the decree was warranted. The sanctions included a reduction in football scholarships, a ban on bowl appearances, and the vacating of 111 wins under Paterno.

"(The) plaintiffs' case ignores reality, including a series of undisputed facts that they cannot try to seriously deny," the NCAA said in a court filing Tuesday.

Specifically, the NCAA says the Paterno family has made unsuccessful attempts to discredit a report developed by independent investigator and former FBI director Louis Freeh, which indicated senior administrators at Penn State allegedly tried to cover-up the Sandusky abuse. Three former Penn State administrators currently face criminal charges for that alleged cover-up.

"To date absolutely nothing has come out in the public domain to shake any confidence in Judge Freeh's report, let alone show it was unreasonable for the NCAA and Penn State to rely on it in 2012, other than the purported findings of paid consultants working at the direction of the Paterno Estate," the NCAA says.

The subsequent decree between the NCAA and Penn State was necessary and so far has been a "resounding success" that resulted in the NCAA lifting some of the sanctions, the NCAA says.

"The result was the consent decree and its athletic integrity agreement, a unique solution to be sure, but one that the parties legitimately and reasonably believed was supported by the facts, was true to the letter and the spirit of the NCAA bylaws, and placed Penn State and its football program on a path to restore their integrity," the NCAA says. "Plaintiffs do not like this success story because it relies on the history that actually happened, as opposed to the history they wish happened."

The Paterno family continues to make the case that the lawsuit filed against the NCAA and Penn State is unfair.

In the suit, the family asks for damages under five allegations: breach of contract, intentional interference with contractual relations, injurious falsehood and commercial disparagement, defamation, and civil conspiracy.

The plaintiffs argue the suit is legitimate in part because Paterno and former Board of Trustees member Al Clemens are intended third-party beneficiaries of the NCAA's constitution and bylaws and therefore have certain enforceable rights. The Paterno family says the NCAA ignored its own rules and denied the Paterno family and co-plaintiffs some of their rights.

The NCAA and Penn State argue the NCAA bylaws actually exclude Clemens as an "involved individual" and the bylaws only apply to current and former athletes and staff, not current and former trustees. Penn Sate and the NCAA say Clemens "lacks standing" to claim breach of contract therefore the university asks the court to dismiss the claim. Defendants also argue Paterno's estate is not an "involved individual" in this case.

A hearing related to the case is slated for May 19 at the Centre County Courthouse before Potter County Judge John Leete.

At the hearing, parties will make arguments regarding the Paterno family's desire to issue a subpoena to the NCAA and Penn State to acquire a slew of documents from the Freeh investigation regarding how Penn State handled Sandusky scandal.

Penn State objects to the pending subpoena saying the request for such documents and other information, including phone records and emails, violates attorney-client privilege as well as other privileges – and also says the demands are unrealistic and overly costly.

The Paterno family argues Penn State's objections "lack foundation;" the work of the Freeh report is not a protected work product; Penn State's objections are "improper;" and that Penn State did not properly assert attorney-client privilege.

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Jennifer Miller is a reporter for StateCollege.com. She has worked in journalism since 2005. She's covered news at the local, state and national level with an emphasis on crime and local government.
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