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Paterno Family Continues to Argue the Lawsuit Against NCAA, Penn State is Fair

by on April 17, 2014 10:37 AM

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

The family filed a memo in Centre County Common Pleas Court this week arguing the suit is fair while the NCAA and Penn State want the court to dismiss the case.

In the suit, the family asks for damages related to the unprecedented sanctions the NCAA leveled against Penn State's football program following the arrest of former Penn State football coach Jerry Sandusky, who is now a convicted pedophile. It also asks the court to overturn a consent decree between Penn State and the NCAA allowing the sanctions.

The lawsuit includes five allegations: breach of contract, intentional interference with contractual relations, injurious falsehood and commercial disparagement, defamation, and civil conspiracy.

The Paterno family is joined in the lawsuit by multiple members of the Penn State Board of Trustees, former Nittany Lion football players, and university faculty members.

The plaintiffs argue the suit is legitimate in part because late Joe 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. Clemens, who is no longer a board member, is a plaintiff under the charge that alleges breach of contract.

The defendants 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 says Clemens "lacks standing" to claim breach of contract therefore the university asks the court to dismiss the claim. The university also argues Paterno's estate is not an "involved individual" in this context.

In this week's filing, the Paterno family says the NCAA ignored its own rules and denied the Paterno family and co-plaintiffs some of their rights.

"The NCAA did this even though they knew that their unlawful actions and irresponsible accusations would end plaintiffs careers, ruin their reputations, and severely injure them," the document states. "In violating their own rules, the NCAA defendants flouted basic requirements of law and in the process caused extraordinary hard to innocent parties, including plaintiffs in this action."

Last week, Centre County Common Pleas President Judge Thomas Kistler issued an order on behalf of Potter County Judge John Leete, who is specially presiding over the case. The order schedules a hearing for May 19 at the Centre County Courthouse.

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 Louis 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.

Penn State hired Freeh, former FBI director, to investigate the scandal. After the Freeh Report was issued, which found significant wrongdoing on the part of the university, the NCAA leveled unprecedented sanctions against Penn State's football program.

The suit asks for monetary damages. It also asks the court to overturn a consent decree between Penn State and the NCAA allowing the sanctions.

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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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