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Penn State and NCAA ask Court to Dismiss Paterno Family Lawsuit

by on March 17, 2014 6:52 PM

Penn State University and the NCAA filed documents Monday asking a court to dismiss a lawsuit filed by the family of former Penn State head football coach Joe Paterno and other parties.

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

The suit, filed against Penn State and the NCAA, 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.

Penn State attorneys argue the lawsuit should be dismissed for a slew of reasons, including that the Paterno family is not a recognized legal entity.

"In order to maintain a suit, a would-be plaintiff must have an actual or legal existence," the university argues.

The suit argues that the 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 resigned earlier this month as the governor was set to appoint his replacement, is a plaintiff under the charge that alleges breach of contract.

Penn State argues the 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 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 the suit, the plaintiffs argue they were unlawfully deprived of procedures due to them under NCAA rules. However, Penn State argues, "The nature of these rights indicate that they are personal to 'involved individuals' – indeed, the rights would be exercised by a living person. As such, these personal rights are not capable of vindication once the individual dies."

Paterno died on Jan. 22, 2012, six months before Penn State entered the consent decree with the NCAA. Sanctions in the decree included a reduction in football scholarships, a ban on bowl appearances, and the vacating of 111 wins under Paterno.

Additionally, Penn State says the breach of contract allegation should be thrown out, saying the plaintiffs fail to explain what rights they have under NCAA's constitution and bylaws, how Penn State violated those rights, and how the plaintiffs were allegedly injured.

The university says the suit fails to identify "what particular rights any of these plaintiffs purportedly acquired under the NCAA's constitution and/or its bylaws; how Penn State allegedly violated those rights; or how any of them allegedly was injured by Penn State's alleged breaches of contract."

Penn State says the charge of civil conspiracy should be dismissed as it relates to the university as the suit only accuses the NCAA and the Freeh Firm, which conducted the investigation into Penn State's handling of the Sandusky scandal, of participating in conspiracy.

Penn State's attorneys also say the plaintiffs, including trustees Ryan McCombie, Anthony Lubrano and Adam Taliaferro, are seeking relief from Penn State, despite statements made by plaintiffs to the contrary. Penn State says it is unclear what relief the plaintiffs are seeking and which of the lawsuit's five counts is directed at Penn State specifically.

Penn State says the suit "does not accurately or completely inform Penn State of the specific basis or bases upon which recovery of the various plaintiffs are seeking recover, and, as such, is not sufficiently clear or specific to enable Penn State to prepare for its defense."

Attorneys also argue the lawsuit fails to comply with procedural rules.

The Pennsylvania Supreme Court appointed Potter County Judge John Leete to preside over the case. However, the case is still in the Centre County court system.

Scott Paterno recently filed a notice of intent to serve a subpoena to Penn State, the Big Ten and NCAA, demanding all documents related to the Louis Freeh investigation into the Jerry Sansudky child sex abuse scandal that resulted in unprecedented NCAA sanctions against Penn State's football program.

Penn State University filed a slew of objections Friday to the Paterno family's pending subpoena request for massive amounts of documents. One of Penn State's attorneys, Joseph Green of Lee Green & Reiter Law Firm in Bellefonte, objected to the Paterno's 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.

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Jennifer Miller is a reporter for 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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