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Paterno Estate, NCAA Go Head-to-Head in Courtroom Confrontation

by on February 06, 2015 2:52 PM

There was a polite tension in the Centre County courtroom where the two sides in the Paterno-NCAA lawsuit met face-to-face in front of Judge John Leete for only the second time in an ongoing legal battle.

Attorneys for the estate of former Penn State head football coach Joe Paterno and the NCAA were able to agree what issues they needed to debate, but that’s where the consensus ended.

Both sides were starkly divided in their opinions on the Paterno estate’s ability to allege a breach of contract by the NCAA, the estate’s attempts to subpoena former members of the NCAA’s executive committee and the estate’s request to release more information to the public.

Breach of Contract

The first third of Friday’s hearing focused on several interrelated questions: did the NCAA conduct an investigation into Penn State after the Sandusky scandal broke? Was Joe Paterno an “involved individual” in this possible investigation? And if he was involved at the time, is his estate still involved after his death?

“What’s lost here is the ability for anyone to know what coach Paterno would say in these proceedings,” said NCAA attorney Everett Johnson. “… the plaintiffs will tell you they can answer those questions, but no one can.”

The plaintiffs in the lawsuit – which includes the Paterno estate, former Penn State assistant football coaches Jay Paterno and William Kenney and former Penn State trustee Al Clemens – argue that Joe Paterno was undeniably an involved individual in an NCAA investigation.

They also argue that both Paterno and his estate have been denied the right to formally respond to defamatory claims made by the NCAA, which they say constitutes a “breach of contract” of NCAA rules and bylaws.

Joseph Loveland, an attorney for the plaintiffs, used a letter the NCAA sent to then-Penn State President Rodney Erickson in November 2011 as evidence that the NCAA was conducting an investigation that involved Joe Paterno. The letter stated that the NCAA would determine if Penn State lacked institutional control, and posed several preliminary questions to Erickson about the scandal.

“Because the NCAA didn’t follow its own rules and sent this letter instead of going through its traditional infractions process, they now say ‘you don’t have the rights you would’ve had if we had followed our rules,’” Loveland said.

Johnson countered that the NCAA letter was not the start of an investigation, but notice that the NCAA was considering starting one – which he says the athletic organization ultimately did not undertake. He also argued that the rights guaranteed to Paterno in the NCAA bylaws do not apply after his death.

Releasing Documents to the Public

For the next debate, Paterno estate attorney Patricia Maher argued the estate should be allowed to release non-confidential documents obtained from the NCAA to the public, much like the numerous documents released in the now-settled lawsuit between State Sen. Jake Corman and the NCAA. A protective order from the court in the Paterno lawsuit currently prevents the release of such documents.

“We think that what happened in the Corman case actually shows exactly why this court was right to enter into a protective order,” said NCAA attorney Brian Kowalski.

Kowalski said that Corman and his attorneys “repeatedly and selectively” released documents that misled the public and swayed public perception of the NCAA as part of a strategy to fight their lawsuit in the court of public opinion. He fears that the plaintiffs in the Paterno lawsuit want to do the same.

Maher shot back that the NCAA has selectively chosen documents of its own to display on its website, which the NCAA claims is an attempt to “set the record straight.” She said that this also purposefully misleads the public, making the NCAA guilty of the very act it accuses the plaintiffs of trying to commit.

“Quite a lot of mischief could be caused through disclosure of discovery materials in this case,” said Penn State attorney Donna Doblick. Penn State was added as a defendant in the suit by the court last year, but remains less directly connected to the case than the other parties.

Serving Subpoenas

The final fight of the day centered on the plaintiff’s attempts to subpoena and depose five university presidents from across the country that served on the NCAA executive committee in the aftermath of the Sandusky scandal. Maher said their deposition testimonies would provide much-needed insight into the inner workings of the NCAA in the period that led up the NCAA’s unprecedented sanctions against Penn State.

NCAA attorney Sarah Gragert responded that trying to depose five individuals from across the country –  Stan Albrecht of Utah State, William Harvey of Hampton University, Nathan Hatch of Wake Forest University, Harris Pastides of South Carolina University and Lou Anna Simon of Michigan State University – is unnecessarily time-consuming and burdensome. The NCAA wants the plaintiffs to return to these potential subpoenas after interviewing “more available witnesses.”

“We are 20 months into this case, and we have taken one single deposition,” Maher said. “We are not jumping the gun by trying to take a lot of depositions.”

Judge Leete said he will issue an opinion that will address all of these issues at some point in the future, but did not say when his decision will be made.

The Lifting of the Consent Decree

Leete, who is a Potter County Judge and is specially presiding over the case, also held a private discussion with the attorneys over an issue the stems from the Corman-NCAA settlement.

Last month’s settlement in the lawsuit between Corman and the NCAA lifted the consent decree between Penn State and the NCAA. Penn State entered into the consent decree in the wake of the Jerry Sandusky child sex abuse scandal, which allowed the NCAA to impose unprecedented sanctions against the university.

Many of the claims in the Paterno lawsuit directly involve the consent decree. The attorneys present at Friday’s hearing discussed how the lifting of the consent decree will impact the Paterno lawsuit with the judge in private after the public hearing ended.

Multiple attorneys declined to comment when asked for details about the private session.

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Michael Martin Garrett is a reporter and editor for StateCollege.com who covers local government, the courts, the arts and writes the Keeping the Faith column. He's a Penn State alumnus, a published poet and the bassist in a local indie rock band.
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