Commonwealth of Pennsylvania v. National Collegiate Athletic Association
January 2, 2013 6:55 PM   Subscribe

Pennsylvania Governor Tom Corbett filed a federal anti-trust lawsuit against the National Collegiate Athletic Association today. Announcing the suit at a press conference this morning, Corbett claimed that the NCAA "seized upon the opportunity for publicity on the backs of the citizens of the Commonwealth". The suit seeks vacation of all of the sanctions levied against Penn State University by the NCAA (previously) after the release of the Freeh Report (previously) on the University's improper handling of allegations of sexual abuse against Penn State defensive coordinator Jerry Sandusky (previously). Responding to the lawsuit, the NCAA called the lawsuit "an affront to all of the victims in this tragedy". Corbett, who has faced criticism for his slow-moving but ultimately successful investigation of the abuse and his close ties to Sandusky's Second Mile charity, is pursuing the case on behalf of the citizens of the Commonwealth rather than the University, which has stated that it is "committed to full compliance" with the sanctions, and is not a party to the lawsuit.
posted by tonycpsu (38 comments total) 4 users marked this as a favorite
This and the Saints fans' complaint against Roger Godell will go into the same dustbin of history.
posted by localroger at 6:59 PM on January 2, 2013 [1 favorite]

Christ, what an asshole.

That said - this can't possibly have any legal standing. Can it ?
posted by Pogo_Fuzzybutt at 7:00 PM on January 2, 2013 [1 favorite]

Man. I really wish it were possible for both sides to lose this lawsuit...
posted by schmod at 7:01 PM on January 2, 2013 [10 favorites]

Just another sign of how deep the rot in the community goes.

Fuck you Tom Corbett, for making me side with the NCAA on something.
posted by dry white toast at 7:06 PM on January 2, 2013 [9 favorites]

That said - this can't possibly have any legal standing. Can it ?

The NCAA sanctions ordered Penn State to spend $60 million to establish an endowment for victims of child abuse. Penn State is a creature of the state government. So the sanctions are, ultimately, directing the state on how to spend its money. Standing seems obvious.
posted by Holy Zarquon's Singing Fish at 7:06 PM on January 2, 2013

Pogo_Fuzzybutt: " That said - this can't possibly have any legal standing. Can it ?"

If you read the 2nd link above, it discusses the legal doctrine of parens patriae as it pertains to federal anti-trust law, and though IANAL, it would seem to give him the ability to stand to sue on behalf of the citizens of the Commonwealth.
posted by tonycpsu at 7:08 PM on January 2, 2013

Wait, my bad, they don't actually seem to be attacking that part of the sanction at all. Teach me to trust the Volokh conspirators over actually reading a complaint.
posted by Holy Zarquon's Singing Fish at 7:08 PM on January 2, 2013 [2 favorites]

The NPR article I heard earlier today had Corbett whining about how this is hurting "the students and the fans" or something like that, and yet Penn State had football this past year and attendance was nearly 97K for the home games.

I fail to see how anyone is getting hurt by this. I hope it's thrown out, perhaps with a lengthy scolding lecture by the judge.
posted by hippybear at 7:10 PM on January 2, 2013 [1 favorite]

Politician and money... forget the lives mangled.
posted by Mojojojo at 7:13 PM on January 2, 2013

One thing I didn't include in the post is the fact that incoming (Democratic) attorney general Kathleen Kane has stated her intention to pursue an investigation into (Republican) Corbett's handling of the Sandusky case. It was a major issue during her AG campaign, with both she and her Republican opponent stating their intention to review Corbett's investigation of Sandusky.

I find it hard to believe that he would be filing this suit to divert attention away from his own role in the scandal, but then again, nearly everything about this tragedy and the ensuing scandal has been hard to believe at first.
posted by tonycpsu at 7:14 PM on January 2, 2013

But, on July 23, 2012, Corbett welcomed the NCAA sanctions, saying, "The appalling actions of a few people have brought us once again into the national spotlight. We have taken a monster off the streets and while we will never be able to repair the injury done to these children, we must repair the damage to this university. Part of that corrective process is to accept the serious penalties imposed by the NCAA on Penn State University and its football program."
posted by Pogo_Fuzzybutt at 7:15 PM on January 2, 2013 [5 favorites]

After reading the complaint, I think this is just a re-election ploy that will prove futile. In addition to being legally sound, a complaint has to tell a coherent, logical, credible, and appealing story and this one just does not:

(1) It vacillates confusingly between claiming that the NCAA's true motivation was to better its brand and claiming that the NCAA's true motivation was to reduce competition....which it has to do because telling only the first part of that story doesn't fit with a believable antitrust case. But the second part seems tacked on, and the complaint never identified particular members of the NCAA that would have specific rivalries with PSU. Instead it's as though every other NCAA member school in the country has some sort of "death to PSU" wish.

(2) It brags about the long-term and legendary strength and honor of the football program and its fans while claiming that a short-term non-death penalty is going to kill that program and drive its fans away.

(3) It describes in detail just how despicable and reprehensible the Sandusky events were and how widespread the media coverage was, but never explains why any dip in revenue or attendance can't be attributed to dismay over those events rather than the sanction.

Whoever was drafting this didn't put in significant time and effort. I don't believe there were months of deliberations behind this, sorry. And I think the court is going to punt it on a motion to dismiss, mostly because of the uneven playing field antitrust claims against the NCAA face compared to those against other entities.
posted by sallybrown at 7:23 PM on January 2, 2013 [5 favorites]

The second best outcome from this would be that Penn State is kept out of sports for an even longer time period. The first best outcome is that Corbett gets impeached for wasting taxpayer time and money.
posted by Blazecock Pileon at 7:23 PM on January 2, 2013 [1 favorite]

I find it hard to believe that he would be filing this suit to divert attention away from his own role in the scandal

Bingo, imo.
posted by sallybrown at 7:24 PM on January 2, 2013 [1 favorite]

sallybrown: "mostly because of the uneven playing field antitrust claims against the NCAA face compared to those against other entities"

Care to explain this part? Are you just saying the NCAA's a bigger/easier target?
posted by tonycpsu at 7:27 PM on January 2, 2013

2014 is an election year for the PA governorship, too.
posted by MegoSteve at 7:30 PM on January 2, 2013

Tom Corbett may not be THE biggest piece of crap currently governing a state, but he's given even Rick Scott and company a run for their money. In the context of his history of removing millions of dollars from public school budgets in Pennsylvania, the hypocrisy of his mock concern for Penn State and the welfare of the victims is too infuriating to be laughable.
posted by daisystomper at 7:34 PM on January 2, 2013 [9 favorites]

This is a re-election ploy plain and simple. Just might work, too
posted by spicynuts at 7:42 PM on January 2, 2013

Care to explain this part? Are you just saying the NCAA's a bigger/easier target?

So, hopefully I will explain this accurately without boring you to death and/or being condescending:

The Sherman Act is the big federal antitrust law and it is complex as hell. The statute itself is simple, but it's so old that courts have been interpreting it for so long and through such a maelstrom of changing economic theory that the case law is tangled and filled with holes.

When courts look at a Sherman Act case in which a plaintiff alleges that entities have imposed a restriction in a market, the court will first decide whether to examine the restriction at issue under the per se standard (in which case the restriction is automatically held to be illegal) or the rule of reason standard (in which case the court goes through a much more complex process to decide on its own whether the restriction is illegal). Some types of restrictions are always judged under the per se standard, like an agreement to fix prices between two competitors. For the most part, when two competitors are agreeing to the restriction, the court is going throw the per se flag more often than when two entities in a vertical relationship (like manufacturer and distributor) agree to a restriction. As the plaintiff, you want the per se case--it's much, much, MUCH easier to win.

So, taken at face value, the NCAA is a loose association of competitors: schools that compete with each other not only in sports/for titles, but also for students and the money that comes with them. Just because they organized into the NCAA doesn't mean they aren't independently owned entities that compete with each other. Ostensibly, agreements made between the member schools, even if made through the NCAA, that restrict competition in the relevant market would be vulnerable to the Sherman Act, likely per se illegal.

However, certain entities that agree to restrict competition in a market have gotten special treatment under the antitrust law when courts find that agreements restricting competition in some way are necessary if the market is to survive. One way this manifests is courts saying "this restriction would otherwise be per se illegal, but because this market would not exist apart from some kind of coordination or agreement, we will examine this restriction under the rule of reason." A rule of reason case is like, "hey, you can still win it, but you have to fight many more battles (is the market definition right? did the restriction actually impact prices? etc) and so there are many more ways to lose.

The NCAA is a prime candidate for this because its member entities must make agreements to coordinate college sports. Lots of articles about this PSU/NCAA suit mention the Board of Regents case as making the NCAA more vulnerable to the antitrust law, but it still did not level the playing field compared to other entities. What happened in Board of Regents is that, while the Supreme Court found the agreements at issue illegal, the Court did so under the rule of reason, not a per se analysis. This is because the Court found that some kind of agreement between the NCAA's member entities was necessary for the market (college sports) to exist at all. In a lot of ways, it was a pretty damn good decision for the NCAA.

From the opinion:
This decision is not based on a lack of judicial experience with this type of arrangement, on the fact that the NCAA is organized as a nonprofit entity, or on our respect for the NCAA's historic role in the preservation and encouragement of intercollegiate amateur athletics. Rather, what is critical is that this case involves an industry in which horizontal restraints on competition are essential if the product is to be available at all. As Judge Bork has noted: "[S]ome activities can only be carried out jointly. Perhaps the leading example is league sports. When a league of professional lacrosse teams is formed, it would be pointless to declare their cooperation illegal on the ground that there are no other professional lacrosse teams." R. Bork, The Antitrust Paradox 278 (1978). What the NCAA and its member institutions market in this case is competition itself - contests between competing institutions. Of course, this would be completely ineffective if there were no rules on which the competitors agreed to create and define the competition to be marketed. A myriad of rules affecting such matters as the size of the field, the number of players on a team, and the extent to which physical violence is to be encouraged or proscribed, all must be agreed upon, and all restrain the manner in which institutions compete. Moreover, the NCAA seeks to market a particular brand of football - college football. The identification of this "product" with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of the "product," athletes must not be paid, must be required to attend class, and the like. And the integrity of the "product" cannot be preserved except by mutual agreement; if an institution adopted such restrictions unilaterally, its effectiveness as a competitor on the playing field might soon be destroyed. Thus, the NCAA plays a vital role in enabling college football to preserve its character, and as a result enables a product to be marketed which might otherwise be unavailable.
Not all of this is super relevant to our complaint, because, as many have pointed out, there is a colorable argument that the sanction doesn't serve the same purposes as more legitimate NCAA agreements, but in my opinion the case law like Board of Regents illustrates a willingness to grant a little more room to the NCAA in terms of antitrust law than a court would grant to some other entity. It gives the court reason to say, "well, otherwise this particular action might violate the antitrust law if another entity imposed it, but we have given the NCAA special treatment in the past and we will do so now."

Sorry for the length and the 90% chance I bungled some part of this explanation. For what it's worth I think the Board of Regents ruling on per se treatment is bullshit and I hope to someday see the NCAA treated like any other cartel.
posted by sallybrown at 8:17 PM on January 2, 2013 [18 favorites]

What the fucking fuck. Corbett doesn't even bother to pretend anymore that his "statements" and his actions have anything logically to do with one another. He's on one hell of a power trip. All we can hope for in PA is that he goes too far and that the power-brokers decide that he's done, I guess.
posted by desuetude at 8:36 PM on January 2, 2013

This is a re-election ploy plain and simple. Just might work, too

Between the Poor / Black People Disenfranchisement Act of 2012 and his sticking it to public school teachers, Corbett's a shoo-in regardless.

God, I hate this state sometimes (well, most of the time, actually).

I would go on a rant about how all this shows that institutes of education and research shouldn't have big time athletic departments, but I'm too busy watching Florida shit the field right now.
posted by dirigibleman at 8:41 PM on January 2, 2013 [3 favorites]

Thanks for the thorough explanation, sallybrown. I was aware of SCOTUS' NCAA-friendly opinion in Tarkanian v. NCAA, but hadn't read about Board of Regents before.
posted by tonycpsu at 8:47 PM on January 2, 2013

I can't imagine how anyone thinks it's a good idea to dredge this up again.
posted by snickerdoodle at 8:11 PM on 1/2

Bingo. I doubt the PSU administration is thrilled about this.
posted by azpenguin at 8:54 PM on January 2, 2013

BentFranklin: "Corbett was on Penn State's Board of Trustees while this was happening. He was the Attorney General of Pennsylvania at the time. He was part of the problem, yet no one's asking what the AG office did, or more accurately, did not do."

Incorrect. As PA Governor, he is currently on the Board of Trustees, but was not on the board when he served as attorney general. The PA Governor always gets a seat on the PSU BoT.

Also, as I mentioned above, the incoming AG is, in fact, asking what he did/did not do during his investigation as AG.
posted by tonycpsu at 8:55 PM on January 2, 2013 [1 favorite]

I really hope the NCAA starting disintegrating over this. What a terrible blight on Colleges and Universities all across the US.

At the same time, I can't imagine Corbett surviving his next election anywhere after this.
posted by Slackermagee at 8:55 PM on January 2, 2013 [1 favorite]

Corbett implicated in Sandusky cover-up in 3... 2... 1...
posted by benzenedream at 9:03 PM on January 2, 2013 [1 favorite]

Thank god, someone is willing to stand up for the right -- no, the duty of public officials to fail to hold anyone accountable for creating a culture that failed to hold someone accountable.
posted by Etrigan at 9:12 PM on January 2, 2013 [1 favorite]

Sadly, Corbett was the better option for the office. That was one of those votes that sucked either way.
posted by DoubleLune at 9:23 PM on January 2, 2013

Next time, vote Cthulhu. Why settle for the lesser of two evils?
posted by hippybear at 9:55 PM on January 2, 2013 [1 favorite]

Eh. Dan Onorato was a weak candidate, but I'll take weak over evil.

(In other words, I'm a Democrat.)
posted by tonycpsu at 10:01 PM on January 2, 2013

Pope Guilty: "fffffffffffffffffuck you, Deadspin."

The Deadspin commenters let the author of that piece have it, and rightfully so. The NCAA is terrible, and they did, in fact, hand out this punishment without following their own bylaws, but though they took shortcuts to get there, the sanctions they handed out were appropriate, and should be served in full. Even a majority of the Black Shoe Diaries commentariat, which is not known for its neutrality on these matters, seems to think that this suit is politically-motivated, and would prefer the school finish serving out these penalties rather than being in the spotlight again for the wrong reasons.
posted by tonycpsu at 7:09 AM on January 3, 2013

The NCAA is terrible, and they did, in fact, hand out this punishment without following their own bylaws, but though they took shortcuts to get there, the sanctions they handed out were appropriate, and should be served in full.

Yeah, this is kind of a Miranda sort of situation, where we all know that Penn State (in the person of its President, Athletic Director, Coach and a few other people) did the crime, and should do the time, even though the process to get there was a little fucked up. I'd absolutely be willing to support a campaign to force the NCAA to follow its own procedures, if and only if Penn State decided to self-impose roughly similar penalties (bowl ban, scholarships reduced and the money diverted to purely academic scholarships, perhaps for social workers) while the NCAA goes through its laborious process.
posted by Etrigan at 7:24 AM on January 3, 2013

For what it's worth I think the Board of Regents ruling on per se treatment is bullshit and I hope to someday see the NCAA treated like any other cartel.

IANAL, but I agree with some of the decision. The product is not the teams, it is the games. Fundamentally, some cooperation has to exist to create the product at all. It actually takes a lot of cooperation. Colleges are not in direct competition with each other, either. Teams compete for resources (players and coaches), but they are not making products that stand alone, and they are not really even competing for end dollars; Michigan fans are not going to start buying OSU merch no matter how much OSU pays their players.

So the NCAA is not like a group of widget manufacturers who would naturally be in competition. It's not even like a group of fishermen who agree not to overfish (is that a cartel?)

Do you consider the football conferences to be cartels too? They are similar to the NCAA, but with fewer redeeming features, and they are the ones actually handling the money.

The NCAA is a bumbling organization with terrible PR, fighting an internal and external battle against its own members who cheat and lie like hell and who wouldn't mind seeing all the rest of college athletics destroyed if it made them a little more short term bank. The level of special scorn the NCAA draws is ridiculous.
posted by fleacircus at 7:36 AM on January 3, 2013

Hope O'Brien leaves for the NFL.
posted by incandissonance at 10:51 AM on January 3, 2013

I'm an Eagles fan, and he'd certainly be an upgrade from Andy Reid, but I would much rather see him stay at Penn State for at least the duration of the sanctions. They did a good thing by going outside the "family" to get a fresh outlook on the team, and the results were great considering the circumstances.
posted by tonycpsu at 11:08 AM on January 3, 2013

State Sen. Jake Corman files second lawsuit against NCAA over Penn State sanctions
Senate Appropriations Committee Chairman Jake Corman has filed a suit in Pennsylvania's Commonwealth Court seeking to keep all proceeds from $60 million in fines assessed against Penn State kept for use in Pennsylvania.


Corman said then "I believe the fine money, which is coming from Pennsylvania residents, should stay in Pennsylvania and benefit our organizations and children. Every dollar will continue to go to worthy and valuable child abuse prevention and educational organizations, except this way, the connection between Pennsylvania resident funds and Pennsylvania benefits will be clear."
posted by tonycpsu at 10:49 PM on January 4, 2013

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