With their courtroom battle set to go before a judge in little more than two weeks, attorneys for Pennsylvania State Sen. Jake Corman, Treasurer Rob McCord, the NCAA and Penn State are laying out their legal strategies — for what could be a revealing look at the events and decisions that led to the controversial sanctions that rocked the Nittany Nation.
Court documents filed Friday include a who’s who list of potential witnesses in this high-stakes showdown. The list includes NCAA president Mark Emmert, former FBI director Louis Freeh, numerous lawyers and and officials for both Penn State and the NCAA, as well as several members of the Penn State Board of Trustees.
According to a joint pre-trial statement filed Friday, when the trial begins on Jan. 6, attorneys expect the court proceedings to continue for at least five days.
In the pretrial statement, attorneys for Corman and McCord write that the focus of the case has expanded to include “a significant legal question with ‘far reaching implications’… whether the Consent Decree is valid.” Penn State signed the consent decree with the NCAA in the wake of the Jerry Sandusky child sex abuse scandal, allowing the NCAA to impose a $60 million fine and other sanctions.
Corman and McCord allege that the NCAA did not have authority to impose sanctions, acted outside its own bylaws and “failed to act in good faith” with Penn State, making the consent decree “invalid and unenforceable” as a matter of law. The two state officials ask for the court to declare the consent decree void, to begin refunding the $60 million fine and any “such other relief the court finds just and proper.”
Corman and McCord also allege that the NCAA shaped the outcome of the Freeh report. The report, released in July 2012, formed the basis for the NCAA’s sanctions against Penn State by concluding that top university officials hid knowledge of Sandusky’s child abuse from the public.
Corman sued the NCAA last year in Commonwealth Court in an attempt to force the NCAA to spend that $60 million fine on child abuse programs in the state of Pennsylvania. The NCAA wants to distribute the funds nationally and has filed a separate lawsuit in federal court. The NCAA argues the Endowment Act, which was passed by the state legislature to keep the NCAA’s fine in state, is unconstitutional, although a Commonwealth Court judge has declared the law constitutional several times.
In response to allegations from Corman and McCord, the NCAA writes in Friday’s filing that “since executing the Consent Decree over two years ago, neither Penn State and Penn State have ever challenged its validity.”
NCAA attorneys write that Corman and McCord lack the legal standing to challenge the consent decree because they are not part of the agreement. The NCAA also claims that Corman and McCord have failed to demonstrate any factors that would invalidate the consent decree.
Attorneys for the NCAA argue that their contact with Freeh and his team during the university-sanctioned investigation was open and transparent. They also claim the NCAA never threatened Penn State with the total loss of its football program, but acknowledge that this was a possibility if the university decided to go through the NCAA’s committee on infractions instead of signing the consent decree.
Penn State, as a nominal defendant, offers little input in the statement. Attorneys for the university provide a brief timeline that summarizes the signing of the consent decree, but make no arguments for or against either side.
The judge in the case – Commonwealth Court Judge Anne Covey – has previously prevented several attempts to keep the case from going to trial. She denied an offer from the NCAA to abide by the Endowment Act if it would prevent the trial, and also denied requests from Corman’s lawyers to move the case to mediation.
Representatives for Penn State declined comment. Attorneys for both sides and representatives from the NCAA did not immediately return requests for comment.
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