The commonwealth of Pennsylvania's antitrust lawsuit against the NCAA, filed today in federal court in the middle district of Pennsylvania, makes the ultimate "Death to the NCAA" argument. It states that the NCAA's decision to slap the Penn State football program with unprecedented sanctions was "arbitrary and capricious," and that the "punishments threaten to have a devastating, long-lasting, and irreparable effect on the commonwealth, its citizens, and the economy." But because the NCAA acted in response to an alleged coverup of the child sex crimes of Jerry Sandusky, and because this is a story that intersects with the murky world of Pennsylvania politics, it's complicated. Allow us to explain what it all means.
Why was this lawsuit filed in the first place?
Because the NCAA is full of shit. We've previously made the argument that a case like this has merit here and here. The suit cites a study that says Penn State football generated $161.5 million in business volume in 2009, and that it helped create 2,200 direct and indirect jobs and more than $5 million in tax revenue. The sanctions threaten all this, the suit argues, which is why the commonwealth is the plaintiff. The suit seeks a permanent injunction preventing the sanctions from being imposed.
The Freeh report was issued in July, and the NCAA's sanctions were handed down less than two weeks later. Why is the lawsuit being filed now?
Gov. Tom Corbett explained at a press conference this morning that the state's general counsel wanted to be "thorough." He said his office had been reviewing the matter since the NCAA dropped the hammer on Penn State over the summer. He also said he didn't want the suit to interfere with Penn State's football season because, you know, priorities.
Is Penn State a party to the lawsuit?
No. Just the commonwealth of Pennsylvania. Ordinarily, the state attorney general would bring such a case, but Pennsylvania law allows the governor's office to do so with the permission of the attorney general.
Wait. Isn't that the same Tom Corbett whose role as governor makes him a member of Penn State's board of trustees?
Yep. Same guy.
Didn't Penn State agree to the NCAA sanctions? Wasn't there a consent decree?
The lawsuit maintains that Penn State was forced into accepting the consent decree. Also, from the lawsuit: "The NCAA has punished Penn State without citing a single concrete NCAA rule that Penn State has broken, for conduct that in no way compromised the NCAA's mission of fair competition, and with a complete disregard of the NCAA's own enforcement procedures."
So what was the NCAA's justification for punishing Penn State?
The NCAA cited a few broad statutes:
1. "A failure to value and uphold institutional integrity."
2. "A failure to maintain minimal standards of appropriate and responsible conduct."
3. "A lack of adherence to fundamental notions of institutional integrity."
The consent decree even acknowledges that "[t]he sexual abuse of children on a university campus by a former university official—and even the active concealment of that abuse—while despicable, ordinarily would not be actionable by the NCAA." The NCAA simply jumped in because a "culture" of "fear of or of deference to the omnipotent football program" and "a reverence for Penn State football allowed this to happen."
So? What's wrong with that?
Lots. The NCAA has a process for meting out punishment that calls for a hearing procedure before the committee of infractions, along with an appeals process. It's a kangaroo court that takes itself very, very seriously. Penn State was granted none of that. Besides, as the lawsuit points out, "virtually all 'football schools' treat their football coaches and programs with 'deference' and 'reverence.'" The suit then takes this position to its logical conclusion: "The NCAA, of course, contributes directly to this 'culture' by permitting and condoning lucrative television and apparel contracts for its major conferences and institutions, outsourcing its postseason to for-profit entities such as bowl games and the Bowl Championship Series, and allowing the contests between its most skilled 'student-athletes' to become national prime time entertainment on a weekly basis." The lawsuit even includes those scare quotes around the term "student-athletes," by the way.
Wow. What else?
Let's quote some more from the lawsuit:
• "In practice, however, the NCAA's primary function has been to maximize the revenue generated for its member institutions, primarily through college football and men's basketball."
• "According to USA Today, in running the non-profit NCAA [president Mark Emmert] is paid $1.6 million per year—nearly 40 percent more than his predecessor."
• "The conduct for which Penn State was sanctioned consisted of alleged failures to report criminal activity on campus that did not impact fairness or integrity on the playing field."
• "The NCAA's inconsistent enforcement decisions have led to a popular perception that the NCAA is more interested in creating the appearance of protecting 'student-athletes' than in actually doing so."
See? There's much to like about this lawsuit.
Hasn't Penn State already paid $12 million of the $60 million fine it was assessed as part of the sanctions? And wasn't that money supposed to be used to fund child-abuse-prevention grants?
Yes and yes. The NCAA is deciding how that $12 million that has already been paid should be spent, but Pennsylvania lawmakers want it used only to pay for programs in Pennsylvania.
Wait. When the sanctions were handed down, didn't Corbett say the NCAA's punishment was part of the "corrective process" of repairing "the damage done to this university"?
So, what gives?
Who knows. Corbett has plenty of issues of his own (more on which in a sec). It's possible that public opinion was so overwhelmingly against Penn State that to fight even the arbitrary and precipitate punishment of the NCAA would've seemed an act of lunatic denial—even though, as we said at the time, it would've been the smart play.
What about the politics of all this?
Corbett has been accused of slow-walking the Sandusky investigation while he was attorney general. And in his 2010 gubernatorial campaign, he took in a boatload of campaign money from people connected to The Second Mile, Sandusky's former charity. Pennsylvania's new attorney general, Kathleen Kane, was elected in part because she promised to investigate Corbett's handling of the Sandusky inquiry. It certainly looks like Corbett is trying to save face, especially by filing the case before Kane is sworn in in the coming weeks. He also has a re-election bid to worry about in 2014.
So is the lawsuit an attempt to absolve Penn State officials of any alleged wrongdoing?
No, though that hasn't stopped writers like Christine Brennan from viewing it that way. In fact, the suit says explicitly that "the Commonwealth emphatically repudiates the conduct of the university officials who knew about the underlying offenses and failed to report them to law enforcement authorities." It's an important distinction, since the NCAA has already reacted to the lawsuit by shamelessly hiding behind Sandusky's victims. But the courts are there to take care of the three Penn State administrators still facing criminal charges. The target here is the NCAA, and the NCAA alone, because the NCAA—a legal and moral enormity that is nothing more than a complex worker's-comp avoidance scheme—often does what it wants and comes up with some airy bullshit to justify having done so. In the case of Penn State, the NCAA used the horrors of Sandusky's crimes to assume powers it doesn't actually have. Hate the school all you want. Penn State is firmly on the side of the angels here.
What about the Paterno family? Do they have anything to say?
They do! They've been conducting their own inquiry, and they say they plan to release those findings soon.
Where can I read the entire lawsuit for myself?